
Class _ 
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V' 



THE CELEBRATION 



OF THE 



CENTENARY OF THE SUPREME COURT 

OF LOUISIANA ^jjL 

7/f 



Supreme Court Room, 
New Orleans, 

Saturday, March 1, 1913. 

The Supreme Court of Louisiana 
met at 11 o'clock a. m. on this day in 
special session to celebrate the cen- 
tenary of the organization of the Court. 
There were present on the bench his 
honor, Chief Justice Joseph A. 
Breaux, and their honors. Associate 
Justices Frank A. Monroe, Olivier 
O. Provosty, Alfred D. Land, and 
Walter B. SommervillE, the Clerk of 
the Court, Mr. Paul E. Mortimer, be- 
ing also in attendance. There were 
also sitting with the Court as its 
guests the following judges of the 
Federal Courts in Louisiana, namely, 
Hon. Don A. Pardee, David D. Shel- 
by, and W. T. Newman, Judges of the 
United States Circuit Court of Ap- 
peals for the Fifth Circuit now sitting 
in New Orleans, and Judge RuPus E. 
Foster, United States District Judge 
for the Eastern District of Louisiana. 

The Governor of Louisiana, Luther 
E. Hall, the Mayor of New Orleans, 
Martin Behrman, Very Rev. J. D. 
FouLKES, S. J., and Right Rev. Davis 
Sessums, D. D., Episcopal Bishop of 
133 La. (xx 



Louisiana, occupied seats just below the 
dais. Ex-Justice N. C. Blanchard and 
Justice-Elect Charles A. O'Niell were 
also present. 

Besides the foregoing, the ceremony 
was attended by the Judges of the 
Court of Appeal of New Orleans, all 
the District Judges of Orleans and 
many from the parishes, the Attorney 
General of the State, the City Attor- 
ney of New Orleans and the District 
Attorney of the United States, the en- 
tire local judiciary and lawyers from 
New Orleans and elsewhere, and offi- 
cials from all parts of the state. 

Edward Douglass Whitp:, Chief 
Justice of the Supreme Court of the 
United States, had been invited to the 
ceremonies, but wrote a letter to Air. 
H. GiBBES Morgan, expressing his re- 
gret at his inability to attend. This 
letter was read by Mr. Joseph W. 
Carroll during his opening address. 

The invited guests of both sexes fill- 
ed the auditorium and an orchestra 
furnished music. 

The labor of preparation for the 
centenary and the management of the 
same on this day devolved on an Ex- 
ecutive Committee appointed by the 

v) 



XXVI 



133 LOUISIANA REPORTS 



Court, Mr. Hknry P. Dart, Chairman, 
Messrs. Gkorge Denegri:, H. Gibbes 
Morgan, J. C. Henrioues, J. J. Mc- 
Laughlin, W. A. Bell, and Henry 
h. Favrot. 

Mr. Bell served as Chairman of the 
Subcommittee on Programme, Mr. J. 
Blanc Monroe as Chairman of the 
Finance Committee, and Mr. W. O. 
Hart as Chairman of the Publicity 
Committee. 

Besides this the Court created a 
committee of one hundred lawyers se- 
lected from all parts of the state to 
assist the Executive Committee. 

Mr. John Dymond, Jr., was Chair- 
man of the Reception Committee. 

Mr. Joseph W. Carroll, President 
of the Louisiana Bar Association, act- 
ed as Master of Ceremonies. 

The session was opened with the 
usual formality, and the order of the 
day was observed as set forth in the 
following program: 

CEREMONIES. 

Saturday, March First, Nineteen Thir- 
teen, In the New Court 
House Building. 

En Banc. 

The Supreme Court of Louisiana and 
the Judges of the Federal Courts. 

Invocation. 

Very Rev. J. D. Foulkes, S.J. 

Minutes. 

(Monday, March 1, 1813.) 
Paul E. Mortimer, Clerk. 

Opening Address. 
Joseph W. Carroll, Master of Cere- 
monies. 



Address of Welcome. 
Governor Luther E. Hall. 

The Centenary of the Supreme Court. 

"The History," 
Henry Plauche Dart. 

"The Jurisprudence," 
Charles Payne Fenner. 

"The Bar," 
Thomas C. W. Ellis. 

Response by the Chief Justice. 
Joseph A. Breaux. 

Benediction. 
Right Rev. Davis Sessums, D. D. 

The court ordered the several ad- 
dresses to be preserved as part of the 
minutes, and they are published here- 
with. 



Invocation. 

By the Very Rev. J. D. Foulkes, 8. J. 

God of justice and equity, who didst en- 
grave in man's conscience the natural law of 
right and wrong and didst promulgate its 
mandates and prohibitions in all positiveness 
by Moses on Sinai's tablets of stone, we 
thank Thee and we invoke Thee! For ten 
decades, Thou hast been present by counsel 
and advice among those who in this state 
of Louisiana were elected to render decisions 
upon matters of supreme importance; for 
100 years Thou hast watched the earnest 
endeavors of judges, bent heart and soul on 
finally settling grave questions for or against 
Thy commandments: "Thou shalt not kill;" 
'•Thou Shalt not steal ;" "Thou shalt not bear 
false witness against thy neighbor;" for a 
century Thou hast given strength and cour- 
age to Justices and Associate Justices for the 
upholding or throwing out of decisions given 
by lower courts. To Thee we give our thank- 
fulest thanks. To-day be Thou auspicious 
and bless the efforts of those appointed to 
portray the glories of the past, the needs of 






CENTENARY OP LOUISIANA SUPREME COURT 



xxvii 



the present, and the hopes of the future! 
During each term of the new century dawn- 
ing to-day upon our Supreme Court, may 
truth be ever the beacon light of our Jus- 
tices! May their judgments be ever like un- 
to Solomon's, wise, prudent, and just! May 
their sifting of evidence be as accurate as 
that of the prophet Daniel, discovering the 
wickedness of the elders and the innocence 
of chaste Susanna ! When time dissolves into 
eternity, and the last assize is set up for 
man's eternal lot, may Thou, unerring, in- 
fallible Divinity, welcome to Thy eternal 
courts each and every incumbent of this high 
office, with that consoling sentence: "Well 
done, thou good and faithful servant, because 
thou hast been faithful over a few things, I 
will place thee over many!" So be it for end- 
less aeons! 



Minutes of March 1, 1813. 

Read ty Mr. Paul E. Mortimer, Clerk Su- 
preme Court. 

The State of Louisiana: 

Be it known that on this day, to wit, on 
Monday, the first day of March, Anno Domini 
One thousand eight hundred and thirteen, and 
in the thirty-seventh year of the Independence 
of the United States of America, the Su- 
preme Court of the State of Louisiana com- 
menced its session at the city of New Or- 
leans. 

Present, the Honorable DOMINICK A. 
HALL and the Honorable GEORGE MATH- 
EWS. 

Their Honors produced their respective 
Commissions from the Governor of the State 
of Louisiana, which, being read, were order- 
ed to be recorded on the Minutes of said 
Court, and are in the following words, to 
wit: 

"United States of America, State of 
Louisiana. 

"William Charles Cole Claiborne, Governor 
of the State of Louisiana. 

"In the name and by the authority of the 
State of Louisiana Know ye that reposing 
special trust and confidence in the Patriot- 
ism, Integrity and abilities of Dominick Au- 
gustin Hall, I have nominated and by and 



with the advice and consent of the Senate, 
do appoint him a Judge of the Supreme Court 
of the State of Louisiana, and do authorize 
and impower him to execute and fulfill the 
duties of that office according to Law; and 
to have and to hold the said office with all 
the powers, privileges and emoluments to 
the same of right appertaining, during good 
behavior. 

"In Testimony whereof, I have caused these 
Letters to be made Patent, and the Seal of 
the State of Louisiana to be hereunto an- 
nexed. 

"Given under my hand at the City of New 
Orleans, on the Twenty-second day of Feb- 
ruary, in the year of our Lord One thousand 
eight hundred and thirteen, and in the year 
of the Independence of the United States of 
America the Thirty-seventh. 

"[Signed] William C. C. Claiborne. 
"By the Governor. 

"[Signed] L. B. Macarty, 

"Secretary of State. 

"I do certify that the within named D. a. 
Hall on this twenty-fifth day of February, 
One thousand eight hundred and thirteen, ap- 
peared before me and took the oath of office 
required by the Constitution of this State 
and of the United States. 

"[Signed] Colsson, Justice of Peace. 

"United States of America, State of 
Louisiana. 

"William Charles Cole Claiborne, Governor 
of the State of Louisiana. 

"In the name and by the authority of the 
State of Louisiana: 

"Know ye, That reposing special trust and 
confidence in the Patriotism, Integrity and 
abilities of George Mathews, I have nominat- 
ed, and by and with the advice and consent 
of the Senate, do appoint him a Judge of 
the Supreme Court of the State of Louisi- 
ana, and do authorize and empower him to 
execute and fulfill the duties of that office 
according to Law, and to have and to hold 
the said office with all the powers, privileges 
and emoluments to the same of right apper- 
taining during good behavior. 

"In Testimony Whereof, I have caused 
these Letters to be made Patent, and the 
Seal of the State to be hereunto annexed. 



XXVlll 



133 LOUISIANA REPORTS 



''Given under my hand at the City of New 
Orleans, on the twenty-third day of Febru- 
ary, in the year of Our Lord One thousand 
eight hundred and thirteen, and in the year 
of the Independence of the United States of 
America the Thirty-seventh. 

"[Signed] William G. C. Claiborne. 
"By the Governor. 

"[Signed] L. B. Macarty, 

"Secretary of State. 
"I do certify that the within named George 
Mathews did on this twenty-fifth day of Feb- 
ruary, One thousand eight hundred and thir- 
teen, appear before me and took the oath 
of office required by the Constitution of this 
State and of the United States. 

"[Signed] Colsson, Justice of Peace." 
Adjourned tiU to-morrow morning 11 
o'clock. 



Opening Address. 

By Joseph W. Carroll, Master of Ceremonies. 

Your Honors, Your Excellency, Ladies and 
Gentlemen: 

The occasion which has brought us to- 
gether this morning is not only unique in 
the history of the state, but is most interest- 
ing in itself. 

On this day, one hundred years ago, the 
Supreme Court of Louisiana was organized 
under the first Constitution of the state, the 
year following its admission to the Union. 

During that time this court, with its con- 
stantly varying membership, has honestly met 
its obligations to the people of the state and 
has kept the judicial ermine unsullied from 
taint of scandal or corruption. 

The courts of the state, and pre-eminently 
this court, typify order as against disorder, 
law as against lawlessness, right as against 
wrong. Under our system of government, 
they are an integral part of the foundation 
of the liberties and happiness of the people. 
With the Executive and the Legislature, they 
constitute the Governmental Trinity, which 
overlooks and safeguards the state and its 
people in their various and diverse interests. 

Our government is not only one of law, but 
of written law, and, in the distribution of 
powers, to the courts has been allotted the 
duty of construing and applying these laws 



to concrete cases — even that most delicate 
duty of annulling by their decrees the writ- 
ten law of the Legislature or the deliberate 
act of the Executive, whenever such law or 
such act runs counter to what the people 
themselves have lawfully decreed in their 
Constitution for the guidance and limitation 
of their servants. The courts may, in this 
sense, be said to be peculiarly the represen- 
tatives of the people. 

It is proper, therefore, that the state, and 
the court itself, should appropriately notice 
this occasion, marking, as it does, the com- 
pletion of a full century of the orderly ad- 
ministration of justice. 

The people of the state, both those present 
here and those of that larger audience of 
the press, may well pause a few hours from 
the pursuit of their ordinary occupations, 
and give thought to their government, to 
what it means to them, their families, their 
property, that the laws should be properly 
made and properly administered, and to their 
own responsibility for any shortcomings in 
either. 

The layman is prone to think and say 
that the courts generally are too far removed 
from the people, and that judicial decisions 
do not respond readily enough to the advanc- 
ing ideas of the people at large. They for- 
get that courts are established to administer 
and not to create the law. It is not for a 
court to be infiuenced by every passing 
sound, however loud or insistent. 

Precedent must, perforce, be the founda- 
tion of every stable jurisprudence, and prece- 
dent is a thing of yesterday and not of to- 
day. It would be neither wise nor just to 
measure the rights of to-day by other than 
the yardstick of yesterday, without fair no- 
tice to all — a notice which should come from 
the lawmaking power rather than the courts. 

There will be those who will speak to you 
of the bench, the jurisprudence, and the bar^ 
and I shall usurp their time but little longer. 

Among those who once sat upon that 
bench, some thirty years ago, was EDWARD 
DOUGLASS WHITE, now Chief Justice of the 
United States. He and former Justice BLAN- 
CHARD are the only surviving ex-justices. 
The court had hoped to have the former 
with us to-day, but higher duties have pre- 
vented. He has however, sent an eloquent 



CENTENARY OF LOUISIANA SUPREME COURT 



XXIX 



message addressed to Mr. H. Gibbes Mor- 
gan of the Committee of the Bar, which I 
shall read: 

"Washington, D. C, 

"February 4, 1913. 
"H. Gibbes Morgan, Esq., New Orleans, La. 

"My Dear Sir: I am deeply sensible of 
the kindness of the Committee of 'One Hun- 
dred Lawyers' appointed to make appropriate 
arrangements for the celebration, on March 
the 1st next, of the 'Centenary of the Su- 
preme Court of the State,' and much regret 
that I am constrained to say that I cannot 
give myself the privilege of accepting. 

"At the time fixed the situation as to the 
work of the court here will be such as to im- 
peratively forbid that I absent myself from 
Washington. Moreover, as the duty rests 
upon the Chief Justice of the United States 
to administer the oath of office to the Presi- 
dent-elect on the morning of the 4th of 
March, it seems to me it would be very im- 
prudent for me to absent myself from Wash- 
ington at a time so near the date of the 
inaugural ceremony. 

"I earnestly hope the commemorative cer- 
emonies will prove worthy of the occasion, 
and that they may serve to refreshen the 
memory of every Louisianian concerning the 
blessings which have been bestowed upon the 
state by the faithful discharge by the court 
of the great duties which rest upon it. In- 
deed, I trust that the ceremonies may not 
only do this, but may serve to revivify and 
strengthen in the hearts and minds of all 
the purpose to sustain and perpetuate the 
court, and thus guarantee individual free- 
dom and representative government by safe- 
guarding the life, liberty, and happiness of 
all. 

"May I ask you to convey to the general 
committee my appreciation of the generous 
consideration which they have shown me by 
extending their invitation, and to accept for 
yourself personally my warm thanks for the 
all too kindly and generous words in which 
you have conveyed the invitation. 

"Always faithfully yours, 
"[Signed] E. D. WHITE." 

It now gives me pleasure to introduce, for 
an Address of Welcome, one who really needs 
no introduction to this audience, his Excel- 
lency, the Governor. 



Address of Welcome. 

By Governor Luther E. Hall. 

Your Honors, Gentlemen of the Bar, Ladles 
and Gentlemen: 

I esteem it a very high as well as most 
pleasant privilege to participate in the cere- 
monies attending the centennial celebration 
of the organization of the Supreme Court of 
this state. 

A century is a short time in the history 
of a state, as history goes, but on this side 
of the Atlantic the swift tread of a free peo- 
ple has brought forth a record of great ac- 
complishment and progress that has excited 
the wonder and admiration of the civilized 
world. The story of Louisiana — the pride 
of Spain, the hope of France, the glory of 
the American republic, and the mother of 
great commonwealths — will echo down the 
ages with ever increasing interest. 

Looking back to the days of Mathews, of 
Martin, and of Porter, and, recalling the part 
this court has played, no Louisianian need 
be ashamed of the record. It has not lacked 
great minds or rugged integrity or devotion 
to truth and justice, nor has it failed in 
meeting the vicissitudes of fortune or the 
difficult and stormy periods of its existence. 
Perhaps no court has had more difficult prob- 
lems to solve or more trying occasions to 
confront. Through its portals have come the 
imperishable principles of the civil law as 
interpreted and developed by the genius of 
the French jurisconsults, and its decisions 
have had an influence in the molding of the 
jurisprudence of other states accorded to but 
few other state judiciaries. A past so full 
of inspiration ought to make for higher 
ideals and wider standards. Retrospection 
is vain if it leads to no reflection and af- 
fords us no promise for the future. 

Nowhere in the world has the judge been 
crowned as he has been in America. Here 
he has been intrusted with power given to 
no other man. It has been his province and 
duty to protect the independence of the three 
great departments of our national as well 
as state governments and to preserve the 
rights and liberties of the people. The peo- 
ple have bowed to his decisions and have 
honored him. They have forgiven some hu- 
man lapses and accepted some flagrant de- 



XXX 



LOUISIANA REPORTS 



partures from tlie riglit as honest errors. 
In their hearts they have transferred "the 
divinity that doth hedge a king" to the judge, 
and marched forth satisfied with the gen- 
eral result. No man has so enjoyed their 
homage. Has he, the judge, in any measure 
lost this confidence and respect? This is a 
question which, at such a time as this, should 
arouse serious thought. 

If a change has come or is coming over 
the people, there must be causes, and the 
members of the judiciary should seek care- 
fully to ascertain and remove the sources of 
irritation. Judges cannot draw around them- 
selves their robes of dignity and look on with 
indifference while the people complain. The 
permanence of our free institutions depends 
upon the confidence the people have in the 
incorruptibility of their courts. It is to the 
courts that they must go for an interpreta- 
tion of their organic as well as statute laws 
and for the vindication of their private 
rights. "In despotic governments," says 
Montesquieu, "there are no laws, the judge 
himself is his own rule. * * * i^ re- 
publics the very nature of the constitution 
requires the judges to follow the letter of 
the law; otherwise, the law might be ex- 
plained to the prejudice of every citizen in 
cases where their honor, property, or life is 
concerned." 

When the people believe that their judges, 
in the determination of cases, consult the 
wishes of powerful political and other inter- 
ests and not the law; when they believe that 
their laws are set aside or twisted and dis- 
torted by construction to subserve the pur- 
poses of such favored interests; and when 
they believe that all men are not equal be- 
fore the law as administered by the courts — 
then all faith in the established form of gov- 
ernment will have been lost and new and 
dangerous experiments will be attempted. 

There is more light than in former days. 
Powerful rays are illuminating the inner- 
most recesses of places of power in every 
department of government. Printed messen- 
gers are carrying into every household facts 
as well as theories. Where there was but 
one pen that could correctly analyze an opin- 
ion of Marshall, there are thousands to-day 
that can correctly tell millions of readers the 



full scope of a decree announced by any 
court in the land. 

"The fierce white light that beats upon a 
throne" is but as a candle to the search- 
light that now throws its rays upon the 
bench. It penetrates the gown, the garment, 
and through the very bones of the man who 
expounds the law in high places. To live in 
this light and retain the love and respect of 
the people, and while speaking with author- 
ity to hold the loyal devotion of the past, a 
judge must have more than learning or talent 
or even genius itself. He must have man- 
hood, broad humanity, sturdy honesty, and 
unswerving devotion to right and justice. 
Platitudes, pretenses of patriotism, and tricks 
of logic shrivel in this light like moths. 
These cannot stand as law in the great fo- 
rum of the people any more than in the less- 
er but more learned tribunals of the bar. 

While assembled here in good fellowship 
and in profound respect for our high court, 
now celebrating its centennial, let us wish 
each member of it good health and hap- 
piness, and indulge the confident hope that 
it will grow in the confidence and esteem of 
the people, that correct standards will al- 
ways be maintained, that the principles of 
the civil law will be preserved in essential 
purity, and that our jurisprudence will an- 
swer at all times to the old definition in 
that it will be truly the science of what is 
just and what is unjust. 



The History of the Supreme Court of 
Louisiana. 

By Henry Plauche Dart, of the New Orleans 
Bar. 

In any historical survey of a court of last 
resort the subject divides itself naturally, as 
Csesar divided all Gaul, into three parts. 
The committee in charge of this ceremony 
has, in this spirit, separated the topic of the 
day into the court, its jurisprudence, and 
its bar, and has assigned a speaker to each 
division of the general subject. The first 
subsection has fallen to my hands, and I 
shall treat as rapidly and succinctly as pos- 
sible the constitutional, legislative, and judi- 
cial history of the court, with passing refer- 



CENTENARY OF LOUISIANA SUPREME COURT 



XXXI 



ence to the judges of the same. Of course, 
the limitations of time and a due concern 
for the rights of those who follow would re- 
duce the tale to a most meager limit, and 
therefore I have been asked to present orally 
the substance of the topic and to preserve the 
manuscript for future use. 

Before entering upon the history of the 
Supreme Court it may be useful and interest- 
ing to tell the story of the two courts which 
to a certain extent held the same position in 
the territorial period. Indeed, from these 
lineal predecessors of the Supreme Court 
that tribunal inherited certain judicial fea- 
tures and methods of procedure which may 
be said to make an umbilical connection be- 
tween the two systems. 

I. The Governor's Court, 1803-4. 

The Louisiana Territory ceded by France 
was taken over by the United States under 
the authority of the act of Congress of Octo- 
ber 31, 1803, which, among other things, pro- 
vided that all the military, civil, and judicial 
powers exercised by the officers of the exist- 
ing government should be exercised tem- 
porarily by such person or persons and in 
such manner as the President of the United 
States should direct, for the purpose of main- 
taining and protecting the inhabitants of 
Louisiana in the full enjoyment of their lib- 
erty, property, and religion. (2 Statutes at 
Large, 245.) 

Under this authority President Jefferson 
appointed James Wilkinson, General of the 
United States Army, and William C. C. Clai- 
borne, then Governor of Mississippi Terri- 
tory, Commissioners to receive delivery on 
behalf of the United States, and on December 
20, 1803, these Commissioners took possession 
of the country covered by the cession. 

In addition to the powers conferred upon 
the two Commissioners, the President gave 
Claiborne a commission "authorizing him 
provisionally to exercise within the ceded ter- 
ritory all the powers with which the Spanish 
Governor General and Intendant were cloth- 
ed, except that of granting lands." (Martin's 
History, Howe's Edition, 295.) 

Claiborne was a Virginian who had been 
admitted to the bar in Tennessee, and at this 
moment was about twenty-eight years old. 



Referring to his appointment, Gayarre says 
(4 History of Louisiana, pp. 1-3) : 

"The immediate effect of that cession was to 
vest all the powers of the defunct government 
(a sort of Gallic and Spanish hybrid) in Govern- 
or Claiborne, until Congress should legislate 
on the organization of the government of the 
new territory. Thus this officer, as he informed 
the inhabitants in a set proclamation, had sud- 
denly become the Governor General and the In- 
tendant of Louisiana, uniting in his person all 
the authority severally possessed by those two 
functionaries under the despotic government of 
Spain. Well might he be astonished at the 
strange position in which he was placed, for he, 
a republican magistrate, found himself trans- 
formed into an absolute proconsul in whom cen- 
tered all the executive, judicial, and legislative 
authority lately exercised in their respective 
capacities by the superseded Spanish dignitaries. 
* * * 

"Claiborne's first measure was to organize the 
judiciary, and he established, on the 30th of De- 
cember, 1803, a Court of Pleas composed of 
seven justices. Their civil jurisdiction was 
limited to cases not exceeding in value three 
thousand dollars, with the right of appeal to the 
Governor when the amount in litigation rose 
above five hundred dollars. That tribunal was 
also vested with jurisdiction over all criminal 
cases in which the punishment did not exceed 
two hundred dollars and sixty days' imprison- 
ment. Each of these seven justices was clothed 
individually with summary jurisdiction over all 
debts under one hundred dollars, reserving to 
the parties an appeal to the Court of Pleas ; 
that is, to the seven justices sitting together in 
one court." (Id.) 

Under this system it appears the Governor 
retained original jurisdiction in all civil and 
criminal matters, save as qualified, and also 
appellate civil jurisdiction over the Court of 
Common Pleas. 

In assuming these judicial powers the Gov- 
ernor conceived that he was acting within 
the scope of his appointment. There is no 
reasonable ground for doubt the Spanish 
Governor General and Intendant had exercis- 
ed, each in his own department, the same ju- 
dicial powers in civil, criminal, and admi- 
ralty matters, and it is also true that they 
were the sole judges in their several courts. 
(Martin, 212.) These officers, however, con- 
sulted with and were advised by a legal as- 
sistant, who was, roughly speaking, an at- 
torney general to the court 

The commission from Jefferson clearly 
vested in Claiborne the powei*s that had pre- 
viously been exercised by each of these otli- 
cials. It cannot be controverted, however, 



XXXll 



133 LOUISIANA REPORTS 



that the greater part of the civil and criminal 
concerns of Spanish times had passed 
through other functionaries, and that in New 
Orleans particularly the Cabildo was the 
court nearest to the people. (Id. 210.) Al- 
though the Governor General sat therein or 
had the right so to do, the average litigant 
lelt the influence of a number of persons thus 
sitting as judges and participating in final 
judgments. Under this method the dead 
weight of a one-man court had not fallen up- 
on the litigant, as it now fell under Clai- 
borne's system. 

Contemporary history proves that no other 
act of the Governor caused more dissension 
than this creation of the Governor's Court. 
Unfortunately Claiborne could not use either 
of the primary tongues of the people ; indeed, 
it is said that at this time he had not ac- 
quired a reading knowledge of either French 
or Spanish, nor does it appear that he was 
able to call to his aid any person having at 
once the languages and the professional skill. 
He has written of this experience that he 
tried to apply to each case his knowledge of 
law and his view of equity and justice. It 
is probable that the same complaint would 
have been made against any judge named by 
him, had he possessed the right to substitute 
a regularly organized court in his stead — a 
power which, under the letter of his appoint- 
ment, seems not to have been granted. 

Considering that in its elements the Span- 
ish rule did vest great and unusual power in 
the Governor General and Intendant, the 
complaint against Claiborne for exercising 
the same powers can only be explained by 
the factious spirit of criticism started by 
the French agent, Laussat, and assiduously 
cultivated by deposed office holders and dis- 
gruntled land speculators. There was un- 
doubtedly a reasonable ground of complaint 
on the part of the American element because 
they were emigrants from a country where 
such power was unknown. The effect of 
these arguments was to create among the 
Creoles a feeling of fear and distrust of the 
American government, and all parties joined 
in an effort for a change. Public opinion 
was whipped to a white heat by mass meet- 
ings and discussions, in which every evil mo- 
tive was attributed to the President, to Con- 
gress, and to the local officers. The act of 



1803 was confessedly temporary, but its du- 
ration was shortened by these appeals. 

On March 26, 1804 (2 Statutes at Large, 
277), Congress divided the Louisiana Pur- 
chase into two territories, and gave the name 
of Orleans to all that section lying south of 
the thirty-third degree of north latitude, on 
the west side of the Mississippi river, and 
south of the Mississippi Territory on the 
east side. Besides providing for the appoint- 
ment by the President of a Governor and a 
Secretary, provision was also made for the 
appointment by him of a Legislative Council 
of thirteen "of the most fit and discreet per- 
sons of the Territory," and, most important 
of all, for the appointment of a Superior 
Court. 

The judicial power was vested in this Su- 
perior Court and in such inferior courts as 
the Legislature might from time to time es- 
tablish. The Superior Court was composed 
of three judges, any one of whom should con- 
stitute a c5urt, to hold office for four years. 
It was vested with jurisdiction in all crimi- 
nal cases, and exclusive jurisdiction in all 
those which were capital, and original and 
appellate jurisdiction in all civil cases of the 
value of one hundred dollars. All capital 
cases were to be tried before "a jury of 
twelve good and lawful men of the vicinage," 
and in all cases, criminal and civil, in said 
court the trial should be by jury, if either of 
the parties required it. 

The salaries of the judges were fixed at 
^,000 per annum, payable quarterly out of 
the revenues of impost and tonnage accru- 
ing within the territory. 

The laws in force in the territory not incon- 
sistent with this act were continued in force 
until altered, modified, or repealed by the 
Legislature ; and the act of October 31, 1803, 
was continued in force until October 1, 1804, 
on which day the act of March 26, 1804, was 
to take effect and to continue for one year 
and until the end of the next session of Con- 
gress thereafter. 

By virtue of these provisions the Supreme 
Court, as Claiborne called it, or Governor's 
Court of the Territory of Orleans, as it is 
known in history, maintained its existence 
for about one year, and until the Superior 
Court was organized on November 9, 1804. 
The records of the former court were, on 



CENTENARY OF LOUISIANA SUPREME COURT 



XXXll] 



March 7, 1805 (chapter XVI, p. 86, Laws of 
Orleans Territory, 1805), ordered to be trans- 
ferred to the office of the Clerk of the Su- 
perior Court of the Territory. 

As changes in our judicial system have oc- 
curred, the archives of abandoned courts 
have been transferred from room to room, 
until finally no man V7as. left who could re- 
member the hiding place or graveyard of the 
records of the early courts. During the past 
twelve months a search has been in progress 
by the Clerk of the Civil District Court, as- 
^sted by a committee of lawyers appointed 
by the Judges, and records innumerable have 
been recovered and removed to the Archive 
Room of this building. 

Among these records, and almost the last 
to be found, we have gathered a nearly com- 
plete file of the Superior Court of the Terri- 
tory, and a few from the Governor's Court. 
Out of the latter we have taken a case which 
seems to be a typical representative of the 
practice before Claiborne sitting as sole 
Judge. This was an original suit filed May 
23, 1804, by Anselme Coudrain against Jean 
Bagneris, to recover from a curator or tutor 
the proceeds of a wasted estate. It is in the 
form of a bill in equity, and was evidently 
drawn by a careful pleader in that system. 
Its caption reads, "In the Court of His Ex- 
cellency," and it is addressed as follows: 
"To His Excellency, William C. C. Claiborne, 
Governor of the Mississippi Territory, exer- 
cising the powers of Governor General and 
Intendant of the Province of Louisiana." It 
is No. 87 of the Superior Court of the Ter- 
ritory of Orleans, and was evidently removed 
into that court under the terms of the act 
just quoted. 

It seems from all evidence attainable that 
Claiborne exercised in this court the judicial 
powers of his predecessors and the usual au- 
thority of an American law court, and he 
added thereto the equitable jurisdiction of 
the English chancellor. It is doubtful wheth- 
er any man ever possessed in this country so 
much supreme power, being at once the law- 
maker, the ruler, and the judge of last resort. 
He therefore holds a unique position in 
American judicial history. 

Claiborne was a voluminous writer of 
diaries and reports, but this material is scat- 
tered and only a small portion of It has been 
133 La.— c 



printed. When the opportunity serves to re- 
write the story of the Governor's Court in 
the light to be afforded by a study of his 
writings and the archives of the court, a dis- 
tinct addition may be made to the sum of 
human knowledge. Until this shall have 
been done the historian must suspend judg- 
ment on the contemporary charge of usurpa- 
tion, ignorance, and maladministration urg- 
ed against that magistrate; for he is, at 
least, entitled to the benefit of the presump- 
tion of law which attaches to the actions of 
all officers. 

II. The Superior Court of the Territory of 
Orleans, 1804-1813. 

President Jefferson appointed Duponceau, 
of Pennsylvania; Kirby, of Connecticut; 
and Prevost, of New York — to form the Su- 
perior Court of Orleans created by the act 
of March 26, 1804, whose provisions have 
just been noticed. The first-named declined ; 
the second died en route to New Orleans, 
after accepting and before the organization 
of the court; and the third, John Bartow 
Prevost, accepted and organized the court in 
New Orleans on Monday, November 5, 1804. 
Pie was the son of a British officer of the 
Revolution, whose widow had married Aaron 
Burr, Jefferson's competitor for the Presi- 
dency and Vice President during his first" 
term. At the time of Prevost's appointment 
he was holding a judicial office in New York 
City. 

The first session of the Superior Court 
was held at the City Hall in New Orleans, 
which was probably the American designa- 
tion of the building now called the Cabildo, 
the generic name for the municipal organi- 
zation under the Spanish regime. 

The vacancies on the bench were not fill- 
ed, and Prevost held court alone until 1806 : 
that is, until after the act of Congress of 
March 2, 1805, went into operation. 2 Stat- 
utes at Large, 322. By this act a new form 
of government was established for the terri- 
tory, to be modeled on the one then existing 
in the adjoining Mississippi Territory, Pi'o- 
vision was made for the appointment by the 
President of the officers, who were to be as 
prescribed in the Ordinance of 1787 for the 
government of the Northwest Territory. 



XXXIV 



133 LOUISIANA REPORTS 



An elective general assembly was created, 
which was composed of twenty-five repre- 
sentatives. The people were vested with all 
the rights, privileges, and advantages possess- 
ed by the adjoining territory, save that the 
Statute of Descent and Distribution and the 
Sixth Article of the Compact in the North- 
west Ordinance should not apply. The act 
of March 26, 1804, was repealed in so far as 
it was in conflict with this act to take effect 
on and after November 1, 1805. 

No change was made in the Superior Court 
system, and the vacancies on that bench 
were filled by the appointment of William 
Sprigg, of Ohio, and George Mathews, Jr., 
of Georgia, whose service began early in 
1806. Prevost seems to have retired toward 
the end of that year possibly, as suggested 
by Claiborne on an earlier occasion, because 
the judge had a large family and could not 
support himself on the meager salary of the 
office. He practiced law here for many years 
thereafter. Joshua Lewis, of Kentucky, took 
Prevost's place in January, 1807. Sprigg re- 
tired in 1808, and was succeeded by John 
Thompson, of Orleans, in that year. He 
died in 1810, and Frangois-Xavier Martin, of 
North Carolina, was appointed in his stead 
on March 10, 1810. Judge Martin was at the 
time of his appointment serving as judge in 
the adjoining Mississippi Territory. 

We have no printed reports of the work of 
the court earlier than the fall session of 
1809. Its archives had been lost — that is, 
no one knew what had become of them — but 
quite recently a number of its records were 
discovered under the accumulated rubbish of 
a century, in a corner of an attic in the old 
Civil Court Building at Jackson Square. 
These records have been removed into the 
new Court Building, and are now being re- 
stored and arranged by the clerk of the last- 
named court. The student of the origins of 
our judicial system may doubtless find here 
a rich reward for his patient labor. 

Upon the accession of Martin in 1810 he 
was troubled by "the dearth of correct in- 
formation in regard to the decisions of the 
court before his arrival," and he set about 
the preparation for publication of the cases 
argued in his time and that immediately pre- 
ceding his appointment. He added the in- 
stinct of a reporter to the experience of a 



practical printer. The two erudite volumes 
(1 and 2 Martin, Old Series) which were 
printed under his supervision in New Orleans 
in 1811 and 1813 are still resorted to as au- 
thority. Indeed, they are a mine of the old 
learning. The title page of both volumes 
carries an extract from the instructions of 
the Empress of Russia to the commission 
which she created to codify the laws of that 
empire : 

"Courts render decisions; these should be 
treasured; they should be circulated, so that 
the judgment of to-day will be as that of yes- 
terday, and so that the property and life of 
citizens should be as certain and fixed, even as 
the Constitution of the state." 

Martin continued to publish the reports 
of the Supreme Court of Louisiana until 
1830, and each title page bears some quaint 
citation of this kind. The committee in 
charge of this celebration has preserved one 
of these on the memorial now before you. 
It is an epigram from Cicero's oration in de- 
fense of Sulla: "Status enim reipublicae max- 
imse judicatis rebus continetur," or, roughly 
paraphrased, "The welfare of the state de- 
pends greatly upon respect for settled deci- 
sions." 

An essay might be written on the relation 
between these maxims and aphorisms of the 
law, and the substance and style of the lit- 
erary matter of Martin's opinions. 

In the preface to the first volume Judge 
Martin announces convictions which we may 
well believe were also the opinions of his 
associates. They merit perpetuation here as 
part of the history of our judicial system. 

Referring to the difliculties of their task 
and the small number of the judges, and 
the remote places in which they sat, making 
it often impossible for more than one judge 
to be present, he says : 

"It has been indispensable to allow a quorum 
to consist of a single judge, who often finds 
himself compelled, alone and unaided, to de- 
termine the most intricate and important ques- 
tions, both of law and fact, in cases of great- 
er magnitude as to the object in dispute than 
are generally known in the state courts ; while 
from the jurisprudence of this newly acquired 
territory, possessed at different periods by dif- 
ferent nations, a number of foreign laws are 
to be examined and compared, and their com- 
patibility with the general constitution and 
laws ascertained, an arduous task anywhere but 
rendered extremely so here from the scarcity 



CENTENARY OF LOUISIANA SUPREME COURT 



XXXV 



of the works of foreign Jurists. Add to this, 
that the distress naturally attending his deli- 
cate situation is not a little increased by the 
dreadful reflection that, if it should be his mis- 
fortune to form an incorrect conclusion, there 
is no earthly tribunal in which the consequences 
of his error may be redressed or lessened." 

Feeling that the decisions might not re- 
ceive elsewhere that recognition which older 
courts enjoyed, he modestly confines his use- 
fulness to his own field, and as to this with 
equal modesty he says : 

"It is true that no judge in deciding any 
future question will think his conscience bound 
by the opinion of any one of his brethren or 
any number of them less than a majority, but 
he may derive aid or confidence from the knowl- 
edge of anterior decisions, the arguments of 
counsel, and the opinions of another judge in 
points on which he has to decide. In matters 
of practice he will at times conform himself 
to w^hat has been already done, though had 
there been no determination he might have sus- 
pended his assent." 

It was fortunate for the new state that 
for eight years anterior to its entry into the 
Union men holding such sentiments had been 
in position to lay the foundations of its law. 
Two of these judges, Mathews and Lewis, 
were of scholarly instincts and had been train- 
ed in the common law. On their accession to 
the bench they knew little French and noth- 
ing whatever of the civil law. Martin, con- 
sidered from any angle, was a profound 
scholar. His legal mind had also been form- 
ed in the common-law field, but he had the 
advantage of the language of his birthplace 
(France), and he had, besides, studied the 
masters of the civil law con amore ; indeed, 
it is said that his edition of Pothier on Ob- 
ligations was translated from book to type 
at his printer's case in North Carolina. 
This early American imprint is, by the way, 
one of the rare treasures of the legal biblio- 
phile. 

The act creating the territory of Orleans 
did not in words impose the common law, 
and, on the contrary, left the Governor and 
Legislative Council free to prescribe in all 
matters not inconsistent with the enabling 
act. President Jefferson, however, was very 
anxious to bring the territory into legal har- 
mony with the other states, and under his 
suggestion Governor Claiborne exerted him- 
self to impress the common law in all its 
features upon the new judiciary. 



The territory was divided by the Governor 
and Legislative Council, in April, 1805, into 
twelve counties, namely, Orleans, German 
Coast, Acadia, La Fourche, Iberville, Pointe 
Coupee, Atacapas, Opelousas, Natchitoches, 
Rapides, Ouachita, and Concordia. A county 
court of one judge was assigned to each, and 
contested cases were triable by jury, and 
their verdict was "conclusive between the 
parties as to the facts thereby decided." 
The judge decided all points of law on such 
jury trials, and provision was made for a 
bill of exceptions to cover the facts on which 
such question of law was raised and decided. 
See Laws of 1805, First Session, chap. 25, 
pp. 144-209, approved April 10, 1805, par- 
ticularly section 6 thereof. 

By sections 16 and 17 of this act the right 
of appeal was granted to the Superior Court, 
on which appeal the case was to be heard on 
the original pleadings, but either party could 
produce new proofs in that court, and could 
also amend his pleadings "so as to bring the 
merits of the case completely before them," 
and the appellate court was authorized to 
"give such judgment as the nature of the 
case may require, and to issue execution 
thereon." 

On the same day, April 10, 1805, an act 
was signed "Regulating the Practice of the 
Superior Court in Civil Causes." This stat- 
ute and the one previously discussed are fa- 
miliarly regarded as the lineal predecessors 
of our Code of Practice, which assimilated 
the elements of both statutes. 

In this Superior Court act the requirement 
of trial by jury became optional with the 
parties and the right was conferred on the 
court to grant a new trial whenever "it shall 
appear that justice has not been done." The 
court was also granted power to make rules 
for regulating the practice, not inconsistent 
with the laws of the territory. See Laws of 
1805, First Session, chap. 26, pp. 210-260. 

By the Law of 1805 (Second Session, chap. 
2, pp. 30-31) the permanent seat of justice 
of the Superior Court was fixed in the coun- 
ty of Orleans, but the court was reiiuired 
once in each year, between June 1st and No- 
vember 1st, to "go circuit" through all the 
other counties of the territory and the judge 
of the county court was required to attend 
the Superior Court in its sessions. The 



5 XXVI 



133 LOUISIANA REPORTS 



judge or Judges going circuit were allowed 
$800 for their traveling expenses. 

By the act of March 31, 1807 (chap. 1, 
page 2), the state was divided for the first 
time into appellate districts and five of these 
were created. The Superior Court was di- 
rected to hold sessions at certain fixed peri- 
ods in Donaldsonville, Pointe Couple, Rapid- 
es, and Opelousas for the four country dis- 
tricts ; while St. Bernard, Plaquemine, St. 
Charles, and St. John were incorporated into 
the New Orleans district, and its appeals 
made returnahle at that city. 

Under this legislation and its own rules, 
it was common practice in the Superior Court 
to try appeals by jury. Bay on v. Rivet, 2 
Mart. (O. S.) 148, and Brooks v. Weyman, 3 
Mart. (O. S.) 9. Aside from this peculiarity, 
the court seems to have found a way to re- 
view all the facts on appeal. The early 
rules have not been found, and there is lit- 
tle in the printed reports to explain the man- 
ner of bringing up the facts. Possibly the 
practice of the time is reflected in the lan- 
guage of the new Supreme Court of the state 
in one of its first decisions (Longer v. Pu- 
gean, 3 Mart. [O. S.] 221), to the effect that 
judgments would not be reversed or affirmed, 
but the appeal would be dismissed, unless it 
be shown "that the whole case is before us, 
or, in cases brought up on exceptions to the 
opinion of the judge, that the requisites of 
the law have been complied with." 

Meanwhile the Legislature was busy with 
many features of law and 'practice, and by 
the time the first Constitution ot the state 
was framed most of the familiar things in 
our law and practice had been created or 
were in process of development. A compari- 
son of Martin's two volumes of Territorial 
Heports with these contemporary statutes 
from 1804 to 1812 will show that the court 
was equally impregnated with the new ideas. 
The most important development of the era 
was, of course, the Digest of the Civil Law, 
or first Civil Code of Louisiana, which was 
adopted, after much opposition, by the Leg- 
islature of the territory. Chapter 29, pages 
120-128, of the Laws of 1808. This work 
was the frame upon which we later builded 
the Civil Code of 1825. The Code of 1805 
confirmed the civil law as the fundamental 



principle of our jurisprudence, but it required 
much effort on the part of its partisans to 
maintain the supremacy. The common law 
was not distinctly repudiated until the con- 
stitutional convention of 1812 settled the 
question. 

When the state convention met in 1812 to 
frame a constitution, the Superior Bench was 
composed of Mathews, Lewis, and Martin. 
The latter was just turned fifty; the others 
somewhat below that age. Notwithstanding 
the provision in the Schedule saving all of- 
ficers until their successors were qualified, .a 
question was raised after the adoption of the 
Constitution, and before the creation of a 
judiciary, controverting the right of these 
federal appointees to continue to act as judg- 
es. Indeed, the people of the Florida parish- 
es declared the judges to be usurpers, and 
threatened to prevent the session of the 
court in that district. The judges decided 
the controversy in the form of a joint letter 
to the senate, holding that under the Sched- 
ule they had become part of the state gov- 
ernment, and that they had accordingly re- 
signed their territorial commissions and were 
now de facto judges of the Superior Court of 
the State of Louisiana. The reasoning 
through which the judges reached this con- 
clusion still commands our respect. It is 
at once the first and one of the best consti- 
tutional arguments in our reports. See 2 
Martin (O. S.) pp. 161-170. 

Under this ruling, which seems to have 
convinced the doubters, the court sat as the 
Superior Court of Louisiana from the spring 
of 1812 until the organization, on March 1, 
1813, of the Supreme Court created by the 
Constitution of 1812. 

The Legislature confirmed this view by ap- 
propriating $2,500 to each of the judges for 
salary as state judges. See Acts of 1812, 
chapter 21, p. 66. 

The court's opinions in its new capacity 
are printed in 2 Martin (O. S.) pp. 171-356, 
and include several important questions, 
whether considered from the point of view 
of the nature of the case or of permanency 
as authority. Thus, Desbois' Case, 2 Mart. 
(O. S.) 185, held that all the inhabitants of 
the territory became ipso facto citizens of the 
state of Louisiana and of the United States 



CENTENARY OF LOUISIANA SUPREME COURT 



XXXVll 



as a result of tlie admission of the state into 
the Union, and without the formality of nat- 
uralization. Another, the Navigation Canisl 
Case, thrice argued, famous in its time and 
still read with interest, was finally decided 
in this interregnum. Mathews and Martin 
wrote opposing opinions, each exhausting the 
ancient law concerning^ servitudes of drain, 
and neither convinced the other. See Orleans 
Navigation Co. v. New Orleans, 2 Mart. (O. 
S.) 10; Id. 2 Mart. (O. S.) 214; Id. 1 Mart. 
(O. S.) 269. 

Still a third case was Livingston v. Cor- 
nell, 2 Mart. (O. S.) 281, also of first rate 
importance, until its conclusions were set 
aside by legislation. It was here ruled that 
it was against good morals for a lawyer to 
share contingently in the results of Litiga- 
tion. 

These slight references to its jurisprudence 
do not by any means exhaust the interreg- 
num cases, nor do they touch at all the hun- 
dreds of rulings in volumes 1 and 2 of Mar- 
tin. 

The Superior Court, as we have noted, was 
one of first instance in all criminal matters 
and in certain civil matters. It was also 
an appellate court in° all other civil causes, 
and, of course, was the only appellate court 
in the territory. It will be readily under- 
stood that under such conditions the judges 
were an important element in the reorgani- 
zation and rebuilding of the government. 

III. The Supreme Court of Louisiana, 
1812-1846. 

The Supreme Court of Louisiana was cre- 
ated by the first Constitution, adopted Jan- 
uary 28, 1812, and approved by Congress 
April 30, 1812. While Claiborne called the 
court of 1803-4 by the same name, he had no 
authority for so doing. This designation has 
remained unchanged through subsequent 
constitutional mutation. It was here made 
the highest court of the state, and that still 
is its distinctive feature. 

By article 4 of the Constitution the court 
was to be composed of not less than three 
nor more than five judges. The title jus- 
tice does not appear until the Constitution 
of 1845. They were to be appointed by the 
Governor, to serve during good behavior. 



The salary was fixed at $5,000. No profes- 
sional qualification was required, a sugges- 
tive omission because at that period laymen 
occupied similar positions in other states, 
but the Legislature corrected this omission 
immediately. 

The jurisdiction was exclusively appellate, 
based on a money value in excess of $300. 
No criminal jurisdiction was conferred and 
none was ever exercised. The question was 
promptly presented and decided in Laverty 
V. Duplessis, 3 Mart. (O. S.) 42 (1813). Thirty 
years afterwards, in April, 1843, the Legis- 
lature (Act 93, p. 59) created a Court of 
Errors and Appeals in Criminal Matters, sit- 
ting in New Orleans, made up of three dis- 
trict judges from the county district, selected 
from the body of the judges. This court 
served from July, 1843, to February, 1846. 
Its decisions are reported in 12 Rob. (La.) 
pp. 513-619. It ceased with the adoption of 
the Constitution of 1845. The judges who 
served this court were Thomas C. Nicholls, 
George Rogers King, Isaac Johnson, with 
William D. Boyle temporarily in February, 
1846. This tribunal has often been confused 
with the Supreme Court, but, as we have 
shown, it was an independent court, having 
no connection whatever with the former 
court. 

The Constitution of 1812 empowered the 
Legislature to organize the judiciary, and no 
restriction was placed on it regarding trial 
by jury or the course at common law. It 
was, however, prohibited from adopting any 
system of laws by general reference, and was 
also required to define the particular law to 
be enacted. This was the culmination of one 
of the great issues of the territorial times, 
and the phraseology was adopted to prevent 
any attempt to bring in the common law by 
reference or jurisprudence. The civil law 
had obtained legislative recognition in the 
Digest or first Civil Code of ISOS, but the 
question was still acute when the convention 
disposed of it. 

The Constitution further required the 
judges to refer in every definitive judgment 
to the particular law in virtue whereof such 
judgment was rendered, and further pre- 
scribed that they should in all cases "adduce 
the reasons on which the judgment is found- 



XXXVlll 



133 LOUISIANA REPORTS 



ed." Our ancestors believed they could in 
this way keep down the judicial imagination, 
mindful of the thought, which was prevalent 
then and which is not yet wholly eradicated, 
that only the Lord could point out the law 
on which some judgments are based. In- 
deed, it is said, though I hope you will not 
press me for the authority, that even He is 
occasionally constrained to pass the point on 
to the ruler of the Subordinate Kingdom. 

Martin's scornful reference to this injunc- 
tion (3 Martin, 351) bore fruit in after years. 
The makers of the Constitution of 1864, with 
canny prevision, required their judges to re- 
fer to the particular law "as often as it may 
be advisaMe so to do," and their contempora- 
ries were quick to point out that the court 
of that period took much comfort out of that 
provision. In the Constitution of 1868 it was 
changed to "practicable," and in that sense it 
appears in all succeeding charters. Even in 
its modified form it must be a great relief 
to the judicial conscience. 

While on this subject it ought to be added 
that by the act of February 17, 1821, p. 98, 
the Legislature required "each and every of 
the" judges of the Supreme Court to deliver 
separate and distinct opinions in each case 
"seriatim, commencing with the junior judge 
of such court" This was fulfilled by the 
court in a most unexpected way. Each judge 
wrote, "I concur in this opinion for the rea- 
sons adduced." Breedlove v. Turner, 9 
Mart. (O. S.) 380-381. On February 27, 1822, 
the law was repealed. Acts 1822, p. 24. 

The first Legislature of Louisiana met on 
July 27, 1812, but it was not until the second 
session, v^hich convened on November 23, 
1812, that plans were devised for a judiciary. 
Claiborne survived his territorial unpopular- 
ity and became the first elected Governor of 
the state. The delay in organizing the court 
was due partially to opposition to his views. 
Finally, on February 10, 1813, he affixed his 
signature to the first Judiciary Act of Loui- 
siana. Laws of 1813, pp. 18-34. 

The first section established a Supreme 
Court of three judges "learned in the law," 
any two of whom would form a quorum. 
Precedence ran by dates of commissions, and, 
these being equal, then by ages of the judges. 
Out of this grew the title of Presiding Judge, 
by which Hall, Mathews, and Martin were in 



due course designated. Appeals were to be 
heard on transcripts (in the Superior Court 
the original record had been brought up), 
and these should contain "the proceedings in 
the case and all other documents on file in 
the same," and the court was directed to 
"hear the appeal on the pleadings and docu- 
ments so transmitted." 

Sections 10, 11, and 13 authorized the court 
to re-examine, reverse, or affirm any final 
judgment, and to render such judgment as 
the nature of the case should require. It 
was provided, however, that there should be 
"no reversal for any error of fact, unless it 
be on a special verdict, or on a statement of 
the facts agreed upon by the parties or coun- 
sel, or fixed by the court." 

There was a particular direction to re- 
verse no judgment or decree for any defect 
or want of form, but to "proceed and give 
judgment according as the rights of the cause 
and matter in law shall appear to them, 
without regarding any imperfection or want 
of form in the process or course of proceed- 
ing whatsoever." 

Section 17 gave supervisory power in aid 
of jurisdiction, and section 18 the right to 
make "all needful rules for regulating" the 
practice of the court not inconsistent with 
this statute or the general law. 

A strict construction of this statute led the 
court at once to the conclusion that it could 
not review the facts "unless the whole case 
was before them" (Brooks v. Weyman, 3 
Mart. [O. S]. 13-14), and in 1817 (Acts, pp. 24- 
44) the Legislature met this situation by pro- 
viding that either party could require the 
clerk to take down the oral testimony as giv- 
en by the witness, to be transmitted to the 
Supreme Court and to serve as a statement 
of facts. Acts 1817, pp. 24-44. This was 
speedily construed (1819) to mean that the 
notes of evidence constituted a statement of 
facts, without any certificate or other formal- 
ity. Barnwall v. Harman, 6 Mart. (O. S.) 722. 
This statute was incorporated into the Code 
of Practice of 1825 as article 601, and is the 
base upon which rests the right of this court 
to re-examine all the facts without regard 
to technical forms in use elsewhere, or for 
that matter, which might be used under our 
own Code. 

In the early days, and, indeed, within the 



CENTENARY OF LOUISIANA SUPREME COURT 



XXXIX 



memory of many men still practicing, all 
testimony was reduced to narrative form, 
save where particular questions and answers 
were required to be taken down. The old 
rule worked well in its time, and it is curi- 
ous that, after decades of swollen transcripts, 
the trend of legal reform is toward our an- 
cient practice. 

By the Constitution' of 1812 the state was 
divided into the Eastern and Western Appel- 
late Districts. Appeals from the former were 
returnable at New Orleans and from the lat- 
ter at Opelousas. The Legislature was em- 
powered to change the last-named at inter- 
vals of five years. The court was required 
to sit in New Orleans from November to 
July, inclusive, and in Opelousas from Au- 
gust to October, inclusive. This was a day 
of limited transportation facilities, and the 
mind dwells uneasily on the spectacle of our 
ancestors traveling over the face of Louisi- 
ana to the seat of justice in the heats of June, 
July, August, and September; nor can we 
fail to be impressed regarding the effect of 
that uncomfortable season on the judicial 
temperament. Legend preserves many tales 
of the habits of the bar of this saddlebag 
time, and, if half that is told is true, the 
fraternity made an Elizabethan holiday of 
the journey, with other consolations besides. 
As to the judges, the record is more silent, 
but the office must have had rare attractions, 
for, of three original appointees, one lived 
out a long life with unsoured disposition 
and died in office ; while another held on 
until he was pried out of his seat by a new 
Constitution, after more than 30 years of 
possession. 

The act of 1813 required the Supreme 
Court to hold its first meeting in New Or- 
leans on the first Monday of March of that 
year, and on that day, the first of the month 
also, Dominick A. Hall and George Mathews 
met in the building called in old days the Gov- 
ernment House, and used at this time by the 
new state officials for public purposes. They 
presented commissions from Governor Clai- 
borne dated respectively February 22 and 23, 
1813, and ordered the same spread upon the 
minutes. Several candidates for admission 
to the bar were examined and admitted, in- 
cluding- some of the best-known men of that 
period, and the court adjourned until the suc- 



ceeding day, when more candidates were ad- 
mitted. 

On March 9, 1813, Pierre Derbigny present- 
ed his commission from Claiborne, which 
was placed on the minutes, and the court had 
its full complement of judges. The delay in 
his commission was due to opposition in the 
Senate, which first rejected and later con- 
firmed the nomination. 

On March 11, 1813, Prevost, ex-judge of the 
Superior Court, brought forward the first 
business. He moved for an appeal to this 
court from a final judgment of the Superior 
Court rendered in the interregnum previous- 
ly discussed. The court took time to con- 
sider, and on March 15, 1813, decided that 
the right of appeal created by the Constitu- 
tion of 1812 applied only to the judicial 
system created or which should be created 
thereunder, and that the late Superior Court 
was no part of that system and had no con- 
cern with it. Remembering, however, the 
famous de facto decision in which two of 
the present judges were concerned (3 Mart. 
[O. S.] 2-6), the court hastened to add that 
the Superior Court had retained its orig- 
inal authority by virtue of the Schedule of 
the Constitution of 1812, which was in effect 
a continuation of its former jurisdiction ; 
that it was an independent creation of a 
different sovereign, which could not have its 
powers added to or circumscribed by state 
legislation ; and that its decisions were final 
and irrevocable. Thus, with one bold stroke, 
the court drew a line between itself and the 
ancient regime, cleared its slate of old busi- 
ness, and left the judges free to make new 
jurisprudence. 

The men who thus set in motion the ca- 
reer of the court which is to-day celebrating 
its one hundredth birthday were all immi- 
grants. Hall, it has been variously said, was 
an Englishman, or a South Carolinian. Math- 
ews was born in Virginia, but spent his 
youth and young manhood in Georgia, and 
his father was at one time Governor of that 
state. Derbigny was born in France. He 
claimed noble extraction, and was indeed an 
emigre of the Revolution of 1789. All were 
men of reputation and capacity, and had seen 
service in Louisiana and Mississippi during 
the preceding ten years. Derbigny alone had 
had no previous judicial training. 



xl 



133 LOUISIANA REPORTS 



Hall retired on July 3, 1813, to take office 
as the first federal district judge of Louisi- 
ana. It is said Ms principal motive for thus 
promptly exchanging one life position for an- 
other was the babel of foreign tongues which 
immediately smote his judicial ear. He had 
scarcely a working knowledge of French and 
none of Spanish, and between the civil law 
and the French advocates he judged his hope 
of fame and his happiness of mind to lie 
in a court which would not be called upon 
incessantly to master and adjudicate these 
new and foreign ideas of jurisprudence. His 
late colleagues found it necessary some years 
afterwards (1821) to declare by rule they 
would not admit to practice any candidate 
who did not know the "legal language of the 
country." 9 Mart (O. S.) 642. 

The vacancy made by his resignation be- 
came a pawn in a new political muddle stir- 
red up between Claiborne and his Legisla- 
ture. It is said that five different names 
were submitted to and rejected by the Senate, 
and the impasse was finally avoided by a 
compromise whereby on January 1, 1815, 
Francois-Xavier Martin, Attorney General of 
Louisiana, assumed the judgeship whose du- 
ties he had so recently laid down, and Eti- 
enne Mazereau, the idol of the Creoles, be- 
came Attorney General in his place. 

Meantime, from July, 1813, to January 1, 
1815, the sessions of the court were held by 
Mathews and Derbigny, and in the February 
term of 1815 Martin beg^n his service on the 
Supreme Bench, destined to continue longer 
than any other judge of that court down to 
this time. In 3 Mart. (O. S.) 329, Martin 
says the "din of war prevented any business 
being done during that term" ; but at the 
opening of the March term he wrote a vigor- 
ous opinion holding that General Andrew 
Jackson's declaration of martial law was a 
usurpation and ineffective; that "the exer- 
cise of an authority vested by law in this 
court could not be suspended by any man." 
3 Mart (O. S.) 530-531. This opinion was ren- 
dered in a case in which Martin had been coun- 
sel and on the merits he recused himself. 3 
Mart. (O. S.) 570. 

The court as constituted by this appoint- 
ment, Mathews, Derbigny, and Martin, de- 
serves a passing personal notice. 

Mathews has been described as short, ro- 



tund, placid, even-tempered, and genial, with 
a touch of humor or pleasantry in his inter- 
course with men and on the bench. His* 
disposition crops out in his opinions, which, 
moreover, are fine specimens of taste and 
learning. 

Derbigny was tall, with a slight, graceful 
figure, somewhat high-strung, nervous, self- 
centered, and ambitious. A certain idiosyn- 
cratic style marks all of his opinions, and it 
suffers in juxtaposition to Martin's clear, 
crisp English, as may be seen in his concur- 
ring opinion in the Martial Law Case, 3 
Mart (O. S.) 530-531. It is clear to the end 
of his service that the author is constantly 
transferring French thought to English ex- 
pression. 

Martin was "rather below the medium 
height, with a large head, a Roman nose, and 
thick neck," stern, silent, serious, dogged, 
and laborious. There is never a gleam of 
humor or sentiment in his productions, but 
he often rises to the sublime. He was a noted 
phrase-maker — doubtless the result of his 
taste for the classics, already noticed. His 
epigrammatic sentences have a terse clear 
arrangement that recalls Bacon and the Bi- 
ble. His views of life were as fixed as the 
North Star. He was devoted to labor, and he 
never allowed himself to be detached from an 
industry that amounted to genius. 

For several years the court worked unbro- 
ken, engaged on some of the greatest questions 
that any American court up to that time had 
grappled with, laying foundations to which 
the ensuing years merely added a superstruc- 
ture. In 1820 Derbigny was selected with 
Livingston and Moreau-Lislet to prepare the 
Civil Code, which is now called the Code of 
1825. In the same year, on December 15, 
1820, he resigned the judgeship to enter un- 
successfully a contest for the governorship. 
Derbigny ran as the candidate of the Creoles, 
while Robertson was supported by the Amer- 
ican element. In 1828 he was more success- 
ful, but he had served as Governor only a 
year when, in 1829, he was thrown from his 
carriage, in a runaway just outside the vil- 
lage of Gretna, in Jefferson parish, and sus- 
tained a fracture of the skull which caused 
his death. To succeed him on the bench the 
Governor selected Alexander Porter, of Ope- 
lousas, who was appointed on January 2, 



CENTENARY OF LOUISIANA SUPREME COURT 



Xli 



1821. This new judge was at 35 a leader in 
tlie profession, a scholar, and a publicist. 
He had held a strong position in the con- 
vention which framed the Constitution, and 
he brought to the bench a freshness and vig- 
or, a depth of scholarship, and an industrious 
application that materially added to the 
prestige which the court enjoyed at that time 
among jurists and in the courts of the world. 
It is difficult to select from his varied store 
any one case to illustrate his genius, but 
the opinion in Saul v. His Creditors, 5 Mart. 
(N. S.) 569, 16 Am. Dec. 212, is generally rec- 
ognized as a production equal to the legal 
classics of any age. It is true the case was 
argued by a galaxy of great lawyers — 
Grym.es, Hennen, Mazereau, Rawle, Morse, 
Eustis, and Livermore — but the ability, un- 
der such circumstances, to distinguish and 
to strike out and impress an enduring prin- 
ciple is no mean gift. 

Porter left the bench in 1833, seduced by 
political aspirations, and he was serving as 
one of the Senators of Louisiana in the Con- 
gress of the United States when he died some 
years later. 

With the passing of Porter the court may 
be said to have closed its Imperial or Au- 
gustan Age. The largest part of its great 
task had been completed. It remained only 
to keep the path straight and to profit by 
the experience of the past in applying the 
problems of the future. 

Bullard, who took Porter's place, has writ- 
ten the contemporary view in a footnote to 
6 Robinson, 413. "It was," he says, "a period 
remarkable in our judicial annals, in the 
course of which the law itself underwent 
great changes, by the amendments of the 
Civil Code and the enactment of the Code of 
Practice, and the final abrogation of the 
Spanish law, in 1828. These changes added 
much to the labors of the bench ; and, while 
they ultimately simplified our jurisprudence, 
produced perplexing difficulties in the compar- 
ison of the old with the more recent enact- 
ments. The Code of Practice especially was 
a most perplexing innovation. The task im- 
posed upon the court was performed with dis- 
crimination and ability. It was also during 
that period that the most important decisions 
were rendered on questions of the conflict of 



laws, and that branch of international juris- 
prudence was greatly illustrated by the la- 
bors of the Supreme Court of Louisiana." 

To succeed Porter, the Governor on Febru- 
ary 4, 1834, commissioned Henry A. Bullard, 
a native of Massachusetts. The new judge 
was a Harvard graduate, and at 46 had seen 
the world in many aspects. He had filibus- 
tered in Mexico, practiced law in Louisiana, 
served as a district judge in Natchitoches, 
sat in Congress, cultivated literature, written 
history; in fine, was a ripe product of the 
times. He served until February, 1839 ; re- 
signed, and again returned to the court in 
1840, remaining this time until the Consti- 
tution of 1845 legislated that bench out of 
office. 

Mathews died in November, 1836, and with 
his death the court of 1812 entered upon its 
twilight. A series of rapid changes took 
place. Martin grew blind and decrepit as he 
aged. When he became Presiding Judge 
through Mathews' death in 1836, his sight 
was very bad, and ultimately was lost com- 
pletely; but he remained on the bench, not- 
withstanding this serious handicap, stead- 
fastly holding on to a position which physi- 
cally he was unfitted to fill. 

He was now surrounded in quick succes- 
sion by new men, who came and went without 
leaving much impression on their own time, 
and whose work of this period has been neg- 
lected or forgotten, or would be forgotten, 
had some of them not made later reputations 
which compels the historian to return to 
their earlier labors for comparison. 

Mathews' place was filled April 1, 1837, by 
Henry Carleton, who is still remembered as 
coadjutor with Moreau-Lislet in the transla- 
tion of the Partidas, which was accepted in 
1820 by the Legislature on the recommenda- 
tion of a committee appointed for the pur- 
pose of examining the translation. This com- 
mittee was Derbigny, Mazereau, and Livings- 
ton, and the Legislature ordered the transla- 
tion to be circulated as a substantial contri- 
bution toward an understanding of the laws 
of Spain. 

Carleton resigned in February. 1S39. and 
Bullard resigned at the same time, as al- 
ready noted, leaving Martin alone on the 
bench. 



xlii 



133 LOUISIANA REPORTS 



At this period the court had accumulated a 
large docket, due principally to the litiga- 
tion resulting from the current panic and 
financial depression. The illness of Mathews 
and Martin had some part in the congestion, 
but the methods of the court were also crit- 
icised. The judges heard arguments on three 
days in each week, sitting five hours per 
day. No check was placed on counsel, and 
the court took the same privilege. It was 
called a "talking court." There was, it Is 
said, a continuous argument in which the 
judges often held the floor to the exclusion of 
counsel. There were times when not more 
than one case was heard in the entire three 
days. A critic of the period (Gustavus 
Schmidt, 1 La, Law Journal, 157) estimated 
that the docket then held 400 cases, and that 
the last one filed would prohably be reached 
at the end of 14 years. 

To meet the public reproach, two of the 
most active leaders of the bar were selected 
to fill the vacancies, and on March 4, 1839, 
the Governor appointed Pierre Adolph Rost 
and George Bustis. As their commissions 
bore the same date, the age rule of the Con- 
stitution was invoked to determine prece- 
dence. Thereupon, says the reporter (13 La. 
87), "Judge Rost, being the senior, took his 
seat on the right and Judge Eustis on the 
left of the Presiding Judge." 

These new judges belonged to the modern 
regime. Eustis was from Massachusetts, of 
distinguished family, well educated, and had 
served as attache in one of our embassies in 
Europe. He enjoyed a large law practice 
here, and his acceptance was an undoubted 
financial sacrifice. Rost was of French birth, 
and had served with Napoleon near the close 
of the latter's reign. He had resided in 
Louisiana for many years. He was in all re- 
spects, socially and otherwise, in the Eustis 
category, and had, besides, cultivated the 
habit of an annual foreign vacation, and the 
families of both judges were absent in Eu- 
rope at the time of their appointment. It 
did not take either judge long to reconsider 
his change in life. Contemporary gossip had 
it that aside from the lost professional emol- 
uments and the freedom of life, which were 
sadly missed, the new judges found them- 
selves hampered by the Presiding Judge in 
the effort to clear the docket. These personal 



peculiarities of the Presiding Judge apparent- 
ly could not be overcome, and they added the 
last drop which overflowed the pail of regret. 
In May, 1839, Rost resigned, and Eustis fol- 
lowed in June. 

The Governor found it not easy to replace 
these recalcitrants. Finally George Straw- 
bridge accepted, and so did Alonzo Morphy, 
who were appointed in August, 1839. Straw- 
bridge served one term, in the Western Dis- 
trict, and took the way of Rost and Eustis ; 
but this was expected, for he declared when 
accepting that he intended to sit only through 
that term and for the purpose of assisting 
to clear the congested docket of his district. 
Morphy remained until the court of 1845 
came in. By birth, training, and service Mor- 
phy was well fitted for the post. He was a 
South Carolinian, and had been a student in 
Livingston's office. He had served in the 
Legislature and as Attorney General. His 
opinions, however, are not light, or thought 
stirring reading, probably because the labor 
of expressing the views of the court was al- 
most wholly thrown upon him. He is the 
author of more than three-fourths of the opin- 
ions reported during his incumbency. 

Eustis was tendered the Strawbridge va- 
cancy, but declined, and the Legislature in 
1839 concluded to end the trouble by exer- 
cising the privilege granted by the Constitu- 
tion to enlarge the court to five members. 
Bullard now accepted a reappointment, and 
Edward Simon and Rice Garland were added 
under the act just quoted. See 14 La. pref- 
ace. The latter ceased to act after the Sep- 
tember term, 1845. 

The decisions of the court of 1812 appear- 
ing in the eighteen volumes, 3 to 12, Martin, 
Old Series, and 1 to 8 Martin, New Series, 
were reported by Martin himself and pub- 
lished at his own expense. Martin's decisions 
extend, however, through the entire series 
of fifty-one volumes of Reports, covering the 
period 1809-1846. 

In the March term of 1830 Branch W. 
Miller became reporter to the court, under 
legislative authority, and his work appeared 
as the Louisiana Reports. He was succeeded 
in 6 Louisiana by Thomas Curry, who con- 
tinued the publication under the same name 
until March, 1842, making nineteen volumes 
of that series. He wrote a valedictory which 



CENTENARY OF LOUISIANA SUPREME COURT 



xliii 



'be published as a preface to bis last vol- 
ume (19 La.), and it may stilb be read witb 
interest. 

Under contract witb tbe state, Merritt M. 
Robinson continued tbe Reports, but gave 
tbem bis own name. He began bis official 
career in 1842 by a suggestion to tbe court 
to be relieved of tbe, expense of publisbing 
certain of its decisions, and be clearly in- 
timated tbat many of tbese were of no gen- 
eral or public interest, and most of tbem 
were, in any event, too long, for all of wbicb 
be was promptly and empbatically snubbed 
by tbe court. He bas embalmed tbe incident 
in a preface to 1 Robinson, and bad bis re- 
venge in twelve portly volumes, covering not 
quite four years of tbe court; but it is an 
open question wbo bad tbe best of tbe ar- 
gument, for tbe point is still under discus- 
sion all over tbe Anglo-Saxon world, and we 
bave not yet beard tbe last word. 

On Wednesday, Marcb 18, 1846, tbe court 
of 1812 met for tbe last time, witb only 
Morpby and Simon present, and tbey ad- 
journed to Tbursday, Marcb 19tb. On tbat 
day tbe court, organized under tbe Constitu- 
tion of 1845, began its sessions. 

Tbe old regime bad lasted tbirty-tbree 
years, but no one regretted its end. Its 
greatest mind was still in service, but bis 
lamp was flickering, and be too passed away 
at tbe end of tbe same year. 

We bave noted Martin's first opinion. It 
is well to refer to tbe last one. It is brief 
and very mucb after tbe old Martin manner. 
In Bridge v. Oakley, 12 Rob. 638, tbe Presid- 
ing Judge ruled tbat an exception of no cause 
of action would not lie in an action for dam- 
ages by a voter against an inspector of elec- 
tions for maliciously preventing tbe voter 
from voting at an election ; tbat tbe ma- 
licious deprivation of tbe ballot was an in- 
jury compensable at law. 

IV. 1846-1853. 

For years before tbe close of tbe period 
just described political parties in Louisiana 
bad been seriously divided on tbe question of 
suffrage, popular control, and rotation in of- 
fice. Tbe old system was topbeavy, and 
many abuses were laid to its door, particu- 
larly in so far as tbe judiciary was concerned. 



Finally a convention was called to frame a 
new Constitution, but tbe factions were so 
evenly divided tbe result was a compromise 
wbicb pleased few, and indeed strengtbened 
tbe objectors for a new struggle wbicb, it 
was recognized, would speedily ensue. 

Tbe Constitution of 1845 framed by tbis 
body provided for a Supreme Court to be 
composed of a Cbief Justice and tbree As- 
sociates, to be appointed by tbe Governor for 
a term of eight years, tbe first judges to go 
out at intervals of two years, tbe Cbief Jus- 
tice last, and tbeir successors to be appoint- 
ed for tbe full term. Tbe salary was $6,000 
for tbe Cbief Justice and $5,500 for tbe As- 
sociates. Being a court of four, it was pro- 
vided tbat tbe judgment below should be 
affirmed when tbe court was divided in opin- 
ion. 

Sessions were fixed in New Orleans from 
the first Monday of November to tbe end of 
June, and elsewhere as should be determined 
by tbe Legislature. Under statutory provi- 
sions, the sessions after 1846 were held in 
Opelousas in August, Alexandria in Septem- 
ber, and Monroe in October, giving the judg- 
es but one month of holiday. 

The appellate civil jurisdiction over $300 
in amount, and other provisions of tbe previ- 
ous Constitution were re-enacted. Appellate 
jurisdiction in criminal cases and on the 
law only was conferred for the first time, 
limited to cases where the punishment of 
death or hard labor was inflicted; also in 
all cases involving the constitutionality or le- 
gality of any tax, toll, or impost, and over 
fines, forfeitures, and penalties imposed by 
municipal corporations. 

This court organized on Tbursday, Marcb 
19, 1846, in tbe room which bad been occu- 
pied for some time by its predecessor. Years 
afterward tbe same room was occupied by 
the Third District Court for the Parish of 
Orleans, in wbicb Justice Monroe held bis 
first judgeship. 

No ceremony marked the advent of tbe new 
judges, who conformed to the simple prac- 
tice of tbe first court. Tbeir commissions 
were signed by Isaac Johnson, Governor, and 
countersigned by Charles Gayarre. Secretary 
of State. These were spread on tbe minutes, 
and the day's session was concluded. 



xliv 



133 LOUISIANA REPORTS 



These judges were George Eustis, Chief 
Justice; Pierre Adolphe Rost, George Rogers 
King, and Thomas Slidell, Associates. The 
Chief Justice and the Senior Associate Rost 
had served, as heretofore noted, for a brief 
period under Martin in 1839, but Eustis 
here attained the distinction of First Chief 
Justice of Louisiana. 

King retired in December, 1849, or, at 
least, he did not serve after that date. He 
was succeeded by Isaac T. Preston, appointed 
by Governor Joseph Walker, who was seated 
March 4, 1850. Judge Preston perished in 
a steamboat fire on Lake Pontchartrain on 
July 5, 1852, and William Dunbar was ap- 
pointed to fill the unexpired term. He sat 
for the first time at Alexandria in the Sep- 
tember term of 1852. The latter is chiefly 
remembered as the subject of an excoriating 
pamphlet by Charles Gayarre in a later cam- 
paign in which they were opposing candi- 
dates for Congress, but which did not elect 
its author. 

King had served as District Judge on the 
Court of Criminal Errors and Appeals, and 
was considered an excellent criminal lawyer. 
State V. Brette, 6 La. Ann. 661. He retired 
from the Supreme Court in 1849 because he 
felt unequal to the labor. He was fragile 
and ill, but he survived all of his Associates, 
dying only in 1871. 

Preston had been an active partisan for 
years in Jefferson parish, and was a mem- 
ber of the Convention of 1845. 

Eustis has heretofore received a passing 
notice regarding his service in 1839, but his 
position in our legal history justifies the in- 
sertion here of a sketch (which is also intrin- 
sically worthy of repetition) from the pen 
of one who occupied the same seat only a 
few years later. Eustis died in 1859, and 
Chief Justice Merrick, addressing the bar 
of the court, said : 

"The attainments of Judge Eustis as a jurist 
were what might have been expected from his 
fine mind, great industry, and studious habits. 

"Through the many years of his professional 
life he was constantly adding to his great stores 
of learning, and sounding the fountains and 
sources of our law. To him the profession was 
not merely an art, valuable because it pro- 
duced gold and silver; it was rather a field of 
ethical philosophy, which rewarded each search 
with new discoveries, and furnished those pleas- 



ures to a cultivated mind which science daily 
bestows upon her votaries. 

"In his intercourse with this court as an 
advocate his manner was peculiar. He seemed 
(in those important and difficult cases which 
were principally confided to him) to discard all 
declamation and elaborate deductions from par- 
ticular texts, and merely suggesting the sources 
of the law to be examined, to give himself up 
to the search of the legal principle which was 
to control the case, as one whose main object 
was to aid the court in its pursuit of the truth, 
and who had no further interest in the result 
than a desire that the right conclusion should 
be attained." 

The court held its last — a purely formal — 
session in New Orleans on Monday, May 2, 
1853, with Rost, Slidell, and Dunbar present, 
and adjourned sine die. 

The court of 1846 had come into ofiice un- 
der a cry for reform in the long opinions and 
costly delays of the late system. In response, 
rules and methods were adopted by the court 
in which everything was subordinated to 
this end. One rule deserves remembrance. 
When rehearings were granted the case was 
resubmitted at once ; the party against whom 
it was allowed was required to file within 
three days thereafter a printed argument on 
the points on which the rehearing was giv- 
en, and the other party to reply thereto with- 
in the three succeeding days. 

On the question of lengthy opinions the 
court almost sacrificed clearness to brevity, 
for, while many important and far-reaching 
opinions were rendered, the hallmark is up- 
on all of them. 

It was a court of strong, bright, active 
men, and the bulk of its work was enor- 
mous. It caught up with a congested dock- 
et — it would seem to have been impossibly 
to satisfy a cry for reform more complete- 
ly than in this instance — but the spirit of 
the young democracy was not to be appeased, 
and before the commission of the Chief Jus- 
tice expired a new Constitution swept an- 
other bench into power. 

Merrick said of this court, on the occasion 
above mentioned: 

"On the change under the Constitution in 
1846— in the formation of which he aided— 
Judge Eustis accepted the office of Chief Jus- 
tice of this court, which he held until the Con- 
stitution of 1852 was carried into effect in 1853. 
The decisions of this period are contained in 
the first eight volumes of the Annual Reports. 



CENTENARY OF LOUISIANA SUPREME COURT 



xlv 



These volumes evince the greatest capacity for 
the transaction of business, and the most un- 
tiring industry on the part of the members of 
that court. To judge of these labors we must 
compare them with the earlier years of our 
jurisprudence. 

"At the time the Supreme Court was or- 
ganized, and many years afterwards, from forty 
to ninety cases were all it was called upon to 
decide during its session in this city. At the 
period to which I refer, its business had in- 
creased to between four and five hundred cas- 
es. What learning was, therefore, required of 
a court composed of only four judges to meet 
the exigencies of the public business, may be 
imagined when it is considered the judges were 
without any suflScient leisure for the investiga- 
tion of authorities, except those cited, and were 
compelled to rely in a great measure on their 
previous reading, or see the business of the 
court increase until it should overwhelm them 
with its hopeless accumulation. It is a suffi- 
cient praise to Judge Eustis to say that he, 
with the assistance of his able colleagues, was 
equal to the occasion." 13 A. viii. 

The reported opinions of the court of 1845- 
1853 were published by M. M. Robinson, re- 
porter of the previous court. A new series 
was begun, called the Louisiana Annual Re- 
ports, a title which remained unchanged for 
fifty-two years. So far as now known, the 
reporter had discretion regarding the print- 
ing of the decisions. In any event, there is 
published in 1st Annual the first known list 
of unreported cases. Robinson soon gave 
way to W. W. King, and he, in turn, was 
succeeded by W. M. Randolph as reporter, 
before the labors of this court ceased. 

Randolph was a lawyer of the younger 
set who had before him a long and honorable 
life and who reached high position at the 
bar. He was selected by the court for the 
reason that the court had been chosen, to 
clear up a congested situation. The preced- 
ing reporter was fifteen months in arrears 
on his printed work, and in June, 1853, was 
publishing the opinions rendered in March of 
the preceding year. In 1854 the new report- 
er delivered volume 7, covering the year 
1852, and promised the Reports of 1853 with- 
in thirty days and the decisions of the first 
quarter of 1854 by August of that year. 
With this prelude the reporter opens a pref- 
ace to volume 7, and adds : 

"The reporter hopes that the large amount 
of work will be a sufficient apology for the 
apparent delay in publication. Few persons not 
familiar with the drudgery of proof-reading 



can form a distinct idea of its annoyances. 
There can be no doubt that whatever gifts 
'come by nature,' correcting proof is not one of 
the number." 



We learn from this preface that the labor 
of making the syllabus fell on the reporter, 
and in using the early Annuals it is well 
to remember this. He says: 

"In all cases, whenever practicable, in making 
the abstracts of points decided, the language of 
the court has been adopted. In a very large 
number of cases the facts are stated to which 
the law has been applied, no attempt being 
made to generalize a principle from the deci- 
sion, when the court has not announced such a 
generalization. This has greatly increased the 
labor; but it has, he trusts, secured accuracy." 

V. 1853-1864. 

The Constitution of 1852 was the product 
of the new democracy, and it reflected the 
spirit of the times. 

This instrument created a Supreme Court 
of one Chief Justice and four Associate Jus- 
tices, elected by the people at times different 
from other elections, for a term of ten years ; 
the first appointees to go out at intervals of 
two years, and the Chief Justice going last 
and serving the first full term. The salary 
remained at $6,000 for the Chief Justice and 
$5,500 for the Associates. The state was di- 
vided into four Supreme Court Districts, with 
the Chief Justice elected from the state at 
large. This was the first time this physical 
division had been made; theretofore, how- 
ever, there was an unwritten rule to the same 
effect, which had not always been observed. 
Vacancies were to be filled by the Executive, 
unless more than one year of the term re- 
mained, in which case the office was sent to 
an election. 

The jurisdiction remained practically as in 
the Constitution of 1845, save that the Leg- 
islature was given the power to restrict it 
"in civil cases to questions of law only," a 
power which was never exercised. 

Wherever, by reason of recusation, a ma- 
jority did not concur in the opinion, the court 
was authorized to call in any judge of an in- 
ferior court to sit in the place of the re- 
cused justice. This was also a new provi- 
sion which had not appeared in the pre%ious 
constitutions. 



xlvi 



133 LOUISIANA REPORTS 



The place and time of the sessions at New 
Orleans remained as before — the first Mon- 
day of November to the end of June, and 
elsewhere as should be directed by the Leg- 
islature. 

On Monday, May 4, 1853, the Supreme 
Court elected by the people under the Con- 
stitution of 1852 organized in New Orleans 
with Thomas Slidell, Chief Justice, and Cor- 
nelius Voorhies, A. M. Buchanan, and A. N. 
Ogden, Associate Justices. James G. Camp- 
bell, the fifth justice, joined on the 16th of 
the same month. 

The rule or ceremony of installation did 
not vary from the precedents already quoted. 
Their commissions were signed by P. O. He- 
bert. Governor. 

Slidell, as we have seen, came over from 
the preceding court, advancing, however, to 
the principal seat and becoming the second 
Chief Justice of the state. The court was 
strong as a whole and compared favorably 
with its immediate predecessor. Its deci- 
sions are as a rule brief, and it is evident, 
without resorting to tradition, that lawyers 
and court worked earnestly and rapidly. 

The courts of other years had apparently 
placed no time limit on arguments, and your 
honors and the brethren of to-day may feel 
some interest in the new rule of 1853 on that 
subject. It raised a chorus of dissent The 
legal horizon grew black with prophecy of 
evil" to result therefrom, and yet that rule 
was mere childs-play compared with the one 
under which we work. 

"In consequence," says the court, "of the 
great number of cases upon the docket, the 
following rule is adopted, to wit: It is or- 
dered that not more than one hour will be 
allowed for an opening argument, one hour 
to each counsel for the defense (not exceed- 
ing two), and one hour for the closing argu- 
ments, except where in special cases the court 
on previous application may otherwise or- 
der." 

It is said that a good, uninterrupted four 
hours' argument will enable any Supreme 
Court to cut down its opinions one-half, if, 
indeed, it does not leave the court without 
the ability to say anything whatever. Your 
honors may not have heard this before, and 
the information is respectfully submitted. 



The court of 1853 lived only nine years, 
excluding the War period, but it created a 
record in Louisiana for rotation in office. 

Campbell resigned in June, 1854, and H. 
M. Spofford was elected to succeed him, tak- 
ing his seat on November 6, 1854. 

Slidell was assaulted by a rufflaH at the 
polls in June, 1855, and his injuries were 
such that he was compelled to retire. He 
dragged out a life of mental disability until 
his death, in 1861. He was a Democrat of 
pronounced type, one of the wheel horses of 
his party, and a leader in the movement for 
an elective judiciary. It seemed the irony 
of politics that his splendid career should 
have been summarily closed by an irrespon- 
sible wretch, whose right to be at that spot 
had perhaps been guarantied to him through 
the efforts of his victim. 

Slidell was succeeded by Edwin Thomas 
Merrick, after a fierce campaign, which it is 
said has never been paralleled in the his- 
tory of the state until very recent times. The 
thii'd Chief Justice had been a district judge 
in the Feliciana district, and he came to his 
seat with an established reputation as a ju- 
rist. He entered on his duties at Monroe on 
August 1, 1855. 

In June, 1855, Ogden resigned, and his un- 
expired term was filled by the election of 
Lea, who sat for the first time on Monday, 
July 23, 1855. 

Lea's term expired in April, 1857, and his 
place was taken by J. L. Cole on May 4, 
1857. 

In September, 1858, Spofford resigned, and 
Thomas T. Land was elected and began to 
serve on November 1, 1858. 

Cornelius Voorhies retired in April, 1859, 
and was succeeded by Albert Voorhies, his 
son, on May 3, 1859. 

In January, 1860, J. L. Cole withdrew, and 
Albert Duffel was elected in his place, and 
took the bench on March 12, 1860. 

On Monday, February 24, 1862, the Su- 
preme Court met in New Orleans, with Mer- 
rick, Buchanan, Voorhies, and Duffel pres- 
ent, and Land absent. Some minor business 
was passed on, and an order was entered re- 
citing that at a meeting of the Judges of the 
Supreme Court and the district judges of Or- 
leans parish, it had been agreed that all 



CENTENARY OF LOUISIANA SUPREME COURT 



xlvii 



courts should adjourn to facilitate the mo- 
bilization of the militia, which had been or- 
dered by the Legislature. Accordingly the 
court adjourned to Monday, May 5, 1862, at 
11 o'clock. 

On that day, all the judges being absent, 
the clerk adjourned the court to Tuesday, 
May 6, 1862, and the. same conditions still 
existing, he on that date adjourned it sine 
die. 

In the gathering of February 24th Buchan- 
an was the last representative of the group 
which organized the court nine years before. 
In that short period twelve judges had seen 
service on the bench, but notwithstanding this 
constant shifting of minds, the body of its 
jurisprudence ranks high. We might, indeed, 
paraphrase here Merrick's eulogy on the pre- 
ceding court, adding to it that Spofford had 
all the ability of Eustis and was more than 
his equal in industry, and that the Chief Jus- 
tice himself took pride in keeping ahead of 
his Associates in the volume of his product, 
and found time besides to write concurring 
and dissenting opinions, which established 
his reputation as an independent thinker. 
Indeed, these volumes and others like them 
make us regret that the Constitution of 
Louisiana now prohibits the publication of 
concurring and dissenting opinions ; for, with 
this limitation on the judicial mind, there 
seems to have fallen on the court a habit 
of concurrence which has, it is thought, help- 
ed to create the impression of a one-man 
court, concerning which so much has been 
said in recent days. 

Aside from the learning and industry of 
the judges, the court had a peculiar advan- 
tage over its predecessors in that nearly 
always there were at least three men sitting 
together who had seen long service on the 
district bench, and who had there attracted 
the deserved appreciation of the bar. The 
judges were not only zealous workers, but 
there was between them a jealousy and ri- 
valry in work which urged each to his topmost 
speed. There is a curious contemporary il- 
lustration of this in a copy of Eleventh An- 
nual in my possession. It contains the auto- 
graph of Justice A. M. Buchanan, and was 
evidently used by him while on the bench. 
On the flyleaf is this entry in his handwrit- 
ing: 



"This volume contains 409 decisions, of 
which pronounced by M. 104 
V. 55 
B. 76 
S. 104 
L. 70 

409 

"Opelousas cases omitted in this volume al- 
together, although 43 cases were decided there, 
of which M. 15 

B. 14 

L. 14 

43. 

"Justices Voorhies and Spofford absent from 
Opelousas." 

Up to the closing hour in New Orleans the 
court seems from its minutes to have been 
undisturbed by the clamor and disturbance 
of the great war which was raging without 
its portals. The last reported cases, decided 
in February, 1862, show no sign of haste or 
tremor. Indeed, it was only when the city 
was literally in the embrace of the foeman, 
and the local authority was toppling to its 
dissolution, that the session was brought to 
an end. 

The opinions of the court of 1852 begin at 
page 277 of the 8 Annual, reported by W. M. 
Randolph, who was succeeded in 12 An. by 
A. N. Ogden, who served until 1862, but the 
opinions of 1861-62 were compiled after the 
War closed, and were published by S. F. 
Glenn, with the assistance of the late re- 
porter. It ought also to be added that by an 
act passed in 1855 the reporter was directed 
to report all cases save those involving mere 
questions of fact, or in which damages were 
assessed for frivolous appeal. 

The city of New Orleans was taken by 
the Federal Army in April, 1862. Baton 
Rouge, the capital, fell shortly thereafter, 
and the seat of the state government was 
removed to Shreveport, and the Supreme 
Court was by legislative act required to hold 
sessions there or elsewhere during the War. 
Act 23 of 1863. Merrick and Land remained 
on duty at Shreveport, but were not joined 
by Buchanan, Duffel, and Voorhies. Buchan- 
an seems to have remained in New Orleans, 
and to have drawn his salary from the Audi- 
tor of the Hahn Government. See Report. 
Journal of Convention of 1864. p. 134. 

Thomas Courlland Manning was appointed 



xlviii 



133 LOUISIANA REPORTS 



by Governor Moore to fill Buchanan's place, 
and served until the close of the War. 

Duffel died, and on February 10, 1864, the 
Confederate Legislature authorized the Gov- 
ernor to appoint a successor to serve until 
an election could be held in Duffel's (Second) 
Judicial District. P. E. Bonford was ap- 
pointed under this act. See Merrick's Ad- 
dress on Land, 45 An. vii. 

There is no printed record of any judicial 
work performed, but in the same address 
it is said the court heard and decided several 
important cases of public interest, besides 
acting in an advisory capacity to the Gover- 
nor and the Legislature. 

During the first four months of federal mil- 
itary occupation, that is, from April to August, 
1862, none of the established courts had been 
opened in New Orleans. The army created a 
provost court presided over by Major Jo- 
seph M. Bell of Butler's staff. All the crim- 
inal offenders were tried here, and the pro- 
vost judge was, besides, invested with a civil 
jurisdiction, which extended into every jus- 
ticiable controversy, including the settling of 
estates and the granting of divorces. See 
Mechanics' Bank v. Union Bank, 89 U. S. 
(22 Wall.) 297, 22 L. Ed. 871. 

In the summer of 1862 General Shepley 
•was appointed military Governor, and one 
of his first acts was an order issued in Au- 
gust, 1862, to reopen for business the Sec- 
ond, Fourth, and Sixth District Courts for 
the Parish of Orleans. He appointed judges 
to these courts, retaining Rufus K. Howell 
in the Sixth, in which he was judge at the 
opening of hostilities. 

On October 20, 1862, President Lincoln by 
executive order established the Provisional 
Court of Louisiana, and appointed Charles 
A. Peabody, of New York, to be judge there- 
of. Peabody arrived from New York in De- 
cember, 1862, bringing with him his clerk, 
marshal, and prosecuting attorney, all North- 
ern men, and the court was immediately put 
in operation. In the executive order the 
President granted to the Judge of the Pro- 
visional Court all the power, jurisdiction, 
and authority previously vested in the dis- 
trict and circuit courts of the United States 
or in the state courts of Louisiana, and, fur- 
thermore, made its judgments final and con- 
clusive. This extraordinary order was pure- 



ly a war measure, and it was supported by 
the arms of the United States until the fall 
of 1864; that is, until the federal courts 
had resumed sessions, and the Republican 
state Constitution of 1864 had been put into 
operation. 

The court was abolished by Congress July 
28, 1866. The regularity of the Provisional 
Court was maintained by the Supreme Court 
of the United States in The Grapeshot, 76 
U. S. (9 Wall.) 133, 19 L. Ed. 651. 

In the interim the Provisional Court sus- 
tained the authority granted to it, and be- 
came in consequence a tribunal of great tem- 
porary importance. The judge seems to have 
exercised not only original jurisdiction, but 
he assumed the power of a court of review 
over the state courts. In the minutes of the 
Provisional Court, under date of January 12, 
1863, the judge entered a rule of procedure 
to regulate transfers of cases to his court 
"from the late Supreme Court." 

This digression would be unwarranted, 
save that it leads up to a matter which has 
long been treated as a legend, but which 
seems on examination to have had some 
foundation. 

After the re-establishment of the three 
district courts in Orleans and similar courts 
in Jefferson and other parishes within fed- 
eral control, the right of appeal from their 
decisions to the Supreme Court of the state 
was claimed and recognized. This created 
a situation unprovided for in Shepley's orig- 
inal order, and to meet it the military Gov- 
ernor appointed a quorum of judges for the 
Supreme Court. In April, 1863, he named 
Charles A. Peabody Chief Justice, and John 
S. Whitaker and J. L. Cole Associates. Pea- 
body was the judge of the Provisional Court ; 
Whitaker was then sitting under appoint- 
ment as judge of the Second District Court; 
and Cole had been on the Supreme Court 
and resigned in 1860, as we have previously 
noted. 

That these persons ever acted together is 
improbable. The Minute Book of the Su- 
preme Court shows no entry after the ad- 
journment on May 5, 1862, until the entry 
covering the organization of the court of 
1865. But Peabody had actually exercised in 
his court the appellate jurisdiction of the 
Supreme Court, and he took over the added 



CENTENARY OF LOUISIANA SUPREME COURT 



xlix 



honor very lightly. An extra commission or 
so was a little thing to this judicial autocrat 
in those piping days. He drew salary as 
Chief Justice to the extent of $3,541.66 on 
his own warrant against the Auditor of the 
Hahn State Government, elected under mil- 
itary authority in February, 1864. See Re- 
port Journal of Convention 1864, under date 
June 25, p. 134. 

The time at my command has not sufficed 
to trace or authenticate the records, if such 
exist elsewhere. In 4 American Law Regis- 
ter, for 1864-65, a contemporary Philadel- 
phia publication, three essays appeared on 
the Provisional Judiciary of Louisiana, in 
which the facts are given substantially as 
above detailed. These essays were published 
in the numbers for December, 1864, p. 65; 
March, 1865, p. 287; and May, 1865, p. 385. 
The writer speaks as with full knowledge, 
and was evidently on the scene. 

From internal evidence, together with the 
initial "B" signed to the article in the March 
number, and the place of composition. New 
Haven, Conn., I am satisfied the writer was 
Edward C. Billings, who was later the law 
partner in New Orleans of Augustus De B. 
Hughes, clerk in 1862-63 of the Provisional 
Court of Louisiana. Billings came to New 
Orleans at or just after the federal occupa- 
tion, and he practiced law here until his ap- 
pointment as Judge of the District Court of 
the United States for this district. His ac- 
tual residence, however, was in New Haven, 
Conn., and he died there while an incumbent 
of this office. 

During the whole period 1862-64 the Su- 
preme Court room was occupied by the Unit- 
ed States military forces. If any session of 
the Supreme Court was held by Peabody, it 
was in his own room in the Custom House, 
but his minutes do not disclose the fact. In 
a slight sketch of the United States Provi- 
sional Court written by Judge Peabody and 
published in the International Review May- 
June, 1878, he intimates that he exercised 
the functions of both offices at the same time. 
Having the federal army at his back and 
there being no appeal from his decisions he 
must be ranked as a more powerful magis- 
trate than the first judge of the territory 
whose career has been covered in the first 
paragraphs of this essay. 
133 La.— d 



In the preface to 16 Annual, written by S. 
F. Glenn and published in 1865, the reporter 
says that the records and opinions of the 
court had been so scattered and misused by 
the military occupants of the court that it 
was difficult to make up a complete report 
of the court's work of 1861-62. The fact 
that Glenn, who was a contemporary, makes 
no mention of the Peabody court is at least 
slight evidence that he found no written 
opinions. Another circumstance throwing 
doubt on the question is that Act 51 of the 
General Assembly 1865, approved April 3, 
1865, makes provision for the transfer of the 
records of the Provisional Court of Louisiana 
into the several district courts of the state. 
No mention is therein made of any records 
to be transferred to the Supreme Court; nor 
has there ever been any further legislation 
on that subject. The records were never, 
however, transferred, and are still in the 
custody of the United States Court for the 
Eastern District of Louisiana. 

Reviewing the whole matter, the conclu- 
sion is that the three persons named were 
actually appointed; that the appointees do 
not appear to have held court together; that 
Peabody apparently exercised the functions 
of the Supreme Court at the same time he 
was sitting as United States Provisional 
Judge, and that he drew salary from the 
state as Chief Justice, at least, until the 
meeting of the Constitutional Convention in 
June, 1864. 

VI. 1864-1868. 

It was the policy of President Lincoln in 
1862-64 to organize a civil government in 
Louisiana, and under his suggestion an elec- 
tion was ordered by General N. P. Banks, to 
'be held on February 22, 1864, to elect a Gov- 
ernor and other state officers, to be installed 
on March 4, 1864 ; and he also called an elec- 
tion to be held March 28, 1864, for delegates 
to a convention to revise the Constitution of 
1852. Both elections were held in due course 
in New Orleans and other places under fed- 
eral control. Michael Hahn was elected Gov- 
ernor and J. Madison Wells Lieutenant Gor- 
ernor, and they were inaugurated on March 
4, 1864. At this time the larger part of the 
state was still in control of the Confederate 
forces. 



1 



133 LOUISIANA REPORTS 



The Convention met April 6, 1864. It was 
composed of political waifs and estrays from 
nineteen parishes, but, of course, some men 
of character and ability were found in the 
gathering. The debates of this convention 
were preserved and printed, and they con- 
stitute a political opera bouffe or side show 
to the awful tragedy of life in Louisiana 
in 1864. 

After much travail a Constitution was 
framed which was submitted in due course 
to the same limited electorate on September 
1, 1864, and on September 5, 1864, a general 
assembly was elected to complete the govern- 
ment. Hahn was elected Senator in 1865 
after two other Senators of the same crea- 
tion had been refused admission by the Sen- 
ate of the United States, and upon this elec- 
tion Hahn resigned and Wells succeeded to 
the Governor's chair. Each of these men 
had been Democrats in the old days, but they 
were now classified as "loyal men," and they 
had been nominated as free state men, i. e., 
men who desired to bring Louisiana back 
into the Union under Republican auspices. 

The Constitution of 1864 created a Su- 
preme Court of five justices appointed by 
the Governor for eight years with a salary 
of $7,500 to the Chief Justice, and $7,000 to 
the Associates. In other respects, including 
jurisdiction, the rules established in the Con- 
stitution of 1852 were re-established, save 
that no territorial qualification was required. 

The court was organized by Act No. 11, p. 
18, of 1864, re-enacted in Act 82 of 1866, p. 
150, by which the state was divided into four 
appellate districts, with one Associate Judge 
from each district; the Chief Justice to be 
appointed from the state at large. Sessions 
were fixed at New Orleans, Monroe, Natchi- 
toches, and Opelousas ; the first from Novem- 
ber to June, the others in July, August, and 
September, respectively. 

Appeals concerning the right to office were 
made returnable in ten days, and in crim- 
inal cases at the next session, wherever held. 
It was also provided that no appeal should 
be dismissed for informality, without op- 
portunity to the other party to remedy the 
same. 

No attempt was made to name the judges 
until April 3, 1865, on which day Governor 
Wells appointed William B. Hyman, of 



Rapides, Chief Justice; and the commissions 
of Zenon Labauve, of West Baton Rouge, 
Rufus K. Howell, John H. Ilsley, and Robert 
B. Jones, of Orleans, Associate Justices, bear 
the signature of Governor Hahn. The judges 
met on May 1, 1865. Their commissions were 
spread on the minute book of the court of 
1858, which was thereupon closed forever. 

The court thus constituted was, from a pro- 
fessional viewpoint, distinctly mediocre, but, 
considering the situation, the appointments 
might have been worse. 

The court, as well as the government from 
which it sprang, was a mere puppet to regis- 
ter the views of the federal authorities, 
political and military. Neither department 
of that government could say it had either 
a soul or a will of its own, and, this being 
the case in the territorial region where it 
was created, it goes without saying that it 
was absolutely disregarded in the remainder 
of the state, where the authorities elected 
in 1861 and again in 1864 were recognized as 
the only true government of Louisiana. But 
the end of the old era was already in sight, 
and the close of the civil strife settled the 
new judges in state- wide authority and de- 
termined their right to a place in the history 
of this court. 

Under the conditions surrounding their ap- 
pointment, the judges had to be in sympathy 
with the winning side, and this particular 
group was "loyal" and "safe." Hyman had 
practiced law for years in Rapides. Labauve 
had accumulated some means as a sugar 
planter and lawyer in the old "German 
Coast" region. Ilsley had practiced in Jeffer- 
son and the adjoining parishes. Howell had 
been a judge before and during the War in 
Orleans; and Jones was an unknown quan- 
tity. The Chief Justice was an amiable, 
easy-going, rather indolent man, full of whim- 
sies and odd ideas. His life had been devot- 
ed by choice to the unpopular and under- 
dog side. This was not a pose but a quality 
of disposition. His transition to the Republi- 
can party was to be expected, and he held 
to that idea until he died, years afterwards. 
Aside from these characteristics, no one ever 
questioned his integrity or his desire to be 
just. If he failed, the times and his asso- 
ciations and surroundings were more to 
blame than he. The last remark may also 



CENTENARY OF LOUISIANA SUPREME COURT 



li 



be applied to Labauve and Ilsley. As to 
Howell, the people generally felt otherwise, 
probably because he was a bitter partisan, 
and he seemed, when going over, to have 
turned his back absolutely upon his past, 
Jones was a nondescript, regarding whose 
ability as a judge there was a contemporary 
jeu d' esprit which Ficllen has preserved in 
his History of Reconstruction in Louisiana, 
a work of rare promise, which, unfortunate- 
ly, the author did not live to complete. He 
says that Jones applied to a justice of the 
peace to qualify, i. e., to be sworn in, and 
the latter replied: "I will swear you in, 
but all hell could not qualify you." The 
story Is probably apocryphal. I heard it 
first from Sam Myers, an irresponsible wag 
who eked out a precarious existence for 
years at this bar, and who will long be re- 
membered for a witty and almost libelous 
poem on Steele, Attorney General of a later 
era, in reply to the suit by the latter for the 
license tax then levied on and still exacted 
from the profession. Jones' reported work 
is scant. He resigned in 1866 and shortly 
afterward died. In his place there came to 
the bench in July, 1866, one of the most 
unique characters of that time, James G. 
Taliaferro, of Catahoula, who was born in 
Virginia in 1798. He had first resided in 
Mississippi, and thence moved to Catahoula, 
La., where for a time he did manual labor 
on a farm. He was elected parish judge in 
1840, apparently without having been licens- 
ed as a lawyer; at least, without having 
practiced. Thereafter he resigned this posi- 
tion and followed the law for a livelihood. 
He was a member of the Constitutional Con- 
vention of 1852, and of the Secession Conven- 
tion of 1861. He was one of the few mem- 
bers of that body who vigorously opposed 
secession, and he declined to sign the ordi- 
nance. He was a rugged, straightforward, 
old man who had convictions which he did 
not hide, and which he was not chary of 
expressing. His attitude at this time was 
in accord with his beliefs. He held the re- 
spect of his opponents in a period when the 
same could be said of few others in his situ- 
ation. He added strength to the court of 
1865, and was returned with Howell to the 
court of 1868. He died while on that bench in 
1876, before the triumph of the cause which 



during all his judicial life he ardently and 
insistently joined in delaying and defeating. 

The labors of the court of 1865-1868 are 
reported in 17 to 20 Annuals, inclusive. The 
first volume is chiefly left-over cases from 
the former court. The reporter was S. F. 
Glenn, who held the position until the close 
of volume 18, and was succeeded in 1867 by 
Jacob Hawkins, who continued the Reports 
through this court and until 1872 in the 
court of 1868, 

The court rules of 1853 continued to gov- 
ern, including the four-hour argument. 

After 1866, that is, in 18, 19, and 20 An- 
nuals, the business of the court grew some- 
what in importance, and many serious cases 
were adjudicated, but, after all is said, it 
remains true that this period of our judicial 
history presents a flat, uninteresting surface. 
The judges were merely filling a gap. Out 
of doors chaos was slowly settling into or- 
der; the air was troubled and the sea of 
politics boiled; great and fundamental chang- 
es were taking place, but life on this partic- 
ular judicial side moved on unperturbed. 

The military forces arbitrarily and with- 
out hypocrisy settled all political and aU 
public judicial questions. The judges were 
allowed to piddle with humdrum litigation, 
but, even so, care was taken to keep step 
with the military band. The forcible invita- 
tion to get out was often issued to their 
confreres in the pseudo state and city gov- 
ernments, for the favor of the master was 
in those days as uncertain as the verdict in 
a Roman circus, but the patient, obedient, 
and careful judges of the Supreme Court of 
1865 were not disturbed. They wore the 
livery of power three and one-half years — 
filling the round of duty, writing common- 
place opinions, and marking time against the 
inevitable change which all the portents fore- 
boded. 

VII. 1868-1877. 

The Constitutional Convention of 1S6S was 
preceded by the congressional reconstruction 
legislation of 1866-67, and there had been 
much blood shed and turmoil engendered as 
a result of that legislation. The members 
of the Convention had been elected by de- 
fault — that is, the Democrats generally ab- 
stained from voting, or were unable to vote — 



lii 



133 LOUISIANA REPORTS 



and when tbe body met its ninety-eiglit mem- 
bers were equally divided between blacks 
and whites, and all but two were Republi- 
cans. 

The Constitution was ratified at an elec- 
tion guarded by federal troops, wherein War- 
moth was declared Governor over Judge 
Taliaferro, who was of the same party faith, 
but had received some Democratic support. 
Warmoth's large majority was chiefly made 
up of negro votes. He had been posing as 
the Moses who would lead them out of the 
Wilderness. The United States in due course 
recognized the return of the state to the 
Union, and military rule ceased in Louisiana, 
save that at all times and until 1877 the army 
was used to maintain the Republican Party 
in its control of the government of the state. 

The Constitution created a Supreme Court 
of a Chief Justice and four Justices modeled 
on the system established in 186-1, save that 
the minimum jurisdiction was raised to $500. 
The salary remained at the previous figures, 
$7,500 and $7,000, respectively, and the ap- 
pointment was vested in the Governor. The 
New Orleans session was shortened to close 
May 31st, and sessions elsewhere were to be 
as before and until otherwise provided by 
the Legislature. 

The Legislature of 1868-69 treated the 
judiciary features of the Constitution as 
self-acting, and made no provisions, save to 
transfer the records of the preceding courts 
to this new creation. Acts 1868, No. 20, p. 
20. 

Warmoth appointed the Justices, and the 
court organized on the first Monday in No- 
vember, 1868, in New Orleans, at the Cabildo, 
which was used for this purpose for the first 
time. John T. Ludeling, of Ouachita, was 
Chief Justice ; James G., Taliaferro, of Cata- 
houla, W. G. Wyly, of Carroll, R. K. How- 
ell, of Orleans, and William Wirt Howe, of 
New Orleans, Associates. All save Howe 
were antebellum residents of the state, and 
more or less well-known personages. Howe 
had been a federal soldier, reaching New Or- 
leans at or just after the capture in 1862, 
and while in the army he had been assigned 
to various tasks which brought him into not 
unfavorable contact with the people. 

The other judges had already shown their 



devotion to the new regime, but they were 
given no credit for honesty or good faith in 
their convictions, save by those who were 
profiting under the new conditions or had 
risen out of the same. The rank and file of 
the white race mistrusted the judges from 
the start, and there was much in the subse- 
quent course of events to strengthen this 
first impression. 

The court of 1865-68 had been a mere polit- 
ical plaything. It was harmless for evil, 
and, on the contrary, had served a very use- 
ful purpose; but the court of 1868-77 was 
quite a different institution. The restoration 
of the state to the Union meant the adminis- 
tration of all its powers and revenues by the 
new regime. The part to be played by the 
highest court was under such circumstances 
a thing to be considered, but no one dreamed 
then how powerful and useful it was to be- 
come. 

The story ' of the eight years of misrule 
in Louisiana from 1868 to 1876 has never 
been fully told. It is known in its black 
outlines, and even in that shape history af- 
fords few parallels for the spoliation and 
demoralization of that time. The Supreme 
Court was a part of the governmental and 
party system under whose auspices and by 
whose members this gross wrong was per- 
petrated, and contemporary criticism did not 
separate or spare any department. 

The political rulers of that period were a 
litigious set. Indeed, the courts had never 
been called upon to decide so many con- 
troversies of a public or quasi public nature. 
The- Supreme Court was the battlefield where 
oflices and emoluments were lost and won, 
and these political quarrels were not always 
aired and adjudicated without leaving scars 
upon the judicial body. A political history 
of Louisiana could, indeed, be written from 
the Annuals of that period, though all other 
records were destroyed; but such history 
would not be impartial, did it not establish 
the Supreme Court as one of the chief in- 
struments in the overwhelming and subjuga- 
tion of Louisiana by the Republican Party. 

Occasionally the current of political mis- 
rule would be stemmed for a time, and the 
court had periods of like effort. Howe par- 
ticularly was restive during much of his 



CENTENARY OF LOUISIANA SUPREME COURT 



liii 



term, and it is said his resignation in 1872 
marked his final rebellion against the politi- 
cal methods of the day. 

It is historically indisputable that the eight 
years of the Ludeling court left a bad taste 
in the mouth of the white people of the 
state. The underlying reason was, of course, 
found in the fact that the great mass of 
the white population and the bulk of the 
property of the state were unrepresented in 
the Republican Party. The government of 
the time was by these unrepresented masses 
considered to be venal and corrupt. It was 
regarded as a revolutionary creation estab- 
lished by the power of the national govern- 
ment, which was always ready to sustain it, 
and did, in fact, maintain it by show of force 
whenever the reviving Democracy seemed 
able to shake it off. As a corollary it was 
believed that a judiciary sustained under 
such conditions could not be better than its 
authors, and consequently it could not and 
did not command the respect and affection 
which has always been felt for the Supreme 
Court more happily constituted. 

It was charged and believed that the 
judges were ardent partisans, active in coun- 
sel and advice, and influenced by the leaders 
in all cases having a political aspect. It 
was the general opinion that no argument 
would convince the court in any case where 
the result would be injurious to the interests 
of the Republican Party, or would tend to 
advance the prospects of their opponents. It 
was also believed that this intense partisan 
bias affected the decision of every case 
where counsel, parties, or witnesses happened 
to be of opposing political families. 

A tribunal thus always under suspicion, 
where one particular class of litigation was 
concerned, was, of course, on the defensive 
in all matters; but there is no evidence to 
sustain any charge against the fair conduct 
of the general business of the court. 

The judges were a strong, forceful body 
of thinkers. Indeed, their undoubted ability 
and capacity was the bulwark of the wicked 
government under which they served. 

The Annuals from 1868-72 cover a great 
course of jurisprudence — not even at the 
beginning of that century were the questions 
at issue so intricate or the matters at stake 
so important. This court was engaged, as 



had been the case with the first court, in re- 
building a government. It was called on to 
interpret and to enforce legislation which 
was intended to reverse the ancient and 
create a ne,v order of things. 

A study of their decisions helps us to un- 
derstand other dark eras in the history of 
our race. These judges were contemporaries 
of the men they now rode with w^hip and 
spur; they had ripened under the same in- 
fluences, yet they were vindictive, unyielding 
partisans who abated not one jot or tittle in 
favor of their ancient fellowship. So far as 
in them lay they established black suprem- 
acy, and drove the last nail into white au- 
thority. They wrote a jurisprudence which 
on racial and public questions w^as specious 
and unsound, and it was torn to pieces by 
the succeeding court, and by subsequent 
legislation; indeed, the whole hope of life 
in this part of the world ran contrary to 
the ruling dogmas of that frightful time, 
supported by the ability and authority of this 
high tribunal. 

But when we have brought this black in- 
dictment, it is our duty to say that in other 
aspects, on general questions of jurispru- 
dence, this bench was the equal of any. No 
student of the law can deny the learning and 
the strength and ability of the reasoning by 
which many great questions were then set- 
tled — decisions which have been re-examined 
and maintained by all succeeding courts. 

The opinions of this period are published 
in 20-28 Annual, inclusive, with Jacob Haw- 
kins as Reporter until 1873 — a grim, stark, 
hard partisan of the ruling faith, who ulti- 
mately resigned to take the judgeship of the 
Superior District Court of Orleans. This 
was a legislative monstrosity created in a 
wild revel of power to rid the dominant fac- 
tion of a Democratic judge recently elected 
to fill the Eighth District Court of the same 
parish. A New Orleans newspaper embalmed 
court and judge in a fierce and stinging epi- 
gram, which will be found reported in the 
libel suit which ensued. Hawkins v. Pub- 
lishing Co., 29 La. Ann. 134. 

To succeed Hawkins as Reporter, the Su- 
preme Court appointed Charles Gayarre. a 
gentleman and a scholar of the old regime, 
reduced in fortune and passin^i in retirement 
the evening of a long and brilliant life. It 



liv 



133 LOUISIANA REPORTS 



was a graceful and an unexpected act — a 
gleam of light In a dark period, which may 
excuse this digression. Mr. Gayarre remain- 
ed until that bench was extinguished in the 
overthrow of 1877. 

The court as originally constituted re- 
mained unbroken until November, 1872, when 
Howe resigned. The political alignments of 
the day, strange to tell, had brought War- 
moth into touch with the Democratic Party 
and had divided htm from the regular faction 
of his own party. Guided by his new As- 
sociates, Warmoth appointed John H. Ken- 
nard to succeed Howe, on December 3, 1872, 
and Mr. Kennard assumed his duties on the 
same day, and served until February, 1873, 
when he was unseated, as we shall now re- 
late. 

When Warmoth broke from his quondam 
associates they resorted to one of the familiar 
tricks of the time. He was impeached, and 
while this was pending Pinchback, the Lieu- 
tenant Governor of Louisiana, appointed 
Philip Hickey Morgan successor to Howe. 
The State Senate did not confirm Kennard, 
but did confirm Morgan on January 4, 1873, 
and proceedings were promptly instituted 
before the Superior District Court to try 
title to the seat. The suit was brought in 
the name of the state, on the relation of A. 
P. Field, Attorney General, and was tried 
summarily. It was decided below in Mor- 
gan's favor, and this judgment was afiirmed 
in the Supreme Court on January 30, 1873 
(25 La. Ann. 238), and Mr. Morgan produced 
his commission and was seated Saturday, 
February 1, 1873. The sole reviewable is- 
sue — whether there was due process of law — 
was presented to the Supreme Court of the 
United States by Mr. Kennard, and he lost 
out there also. 92 U. S. 480, 23 L. Ed. 478. 
Morgan was a lawyer of standing and abil- 
ity, and the bench in this respect lost nothing, 
but the appointment preserved the old politi- 
cal phalanx which had been temporarily 
broken by Kennard's service. 

Taliaferro died in October, 1876, and 
John E. Leonard was appointed by Kellogg, 
taking his seat at the opening of the Novem- 
ber term, 1876. As a matter of fact the 
eight-year term of the Justices expired by 
limitation in November, 1876, but the Justices 
continued to sit until December 23, 1876, 



when the court adjourned for the Christmas 
recess, to meet again on Tuesday, January 9, 
1877. 

During that recess Kellogg reappointed 
Ludeling Chief Justice and Leonard Asso- 
ciate Justice for the full term. He also ap- 
pointed John E. King to succeed Wyley, and 
announced that the places of Mbrgan and 
Howell would be filled by "Governor" Pack- 
ard. 

VIII. 1877-1880. 

The state election held on November 7, 
1876, was involved in the Returning Board 
troubles of that winter, with the result that 
dual governments were inaugurated in the 
ensuing January. Almost the first act of 
Governor Nicholls was the appointment of a 
full bench for the Supreme Court. These 
persons qualified on January 8, 1877, before 
A. L. Tissot, District Judge of Orleans, and 
early in the morning of the 9th secret prep- 
arations were made by the Nicholls police 
and militia to capture the Supreme Court 
building and to seat these judges. 

The Packard government had installed its 
own police in the building, and at 11 o'clock 
on Tuesday, January 9, 1877, Ludeling, Leon- 
ard, and King called upon the sheriff to 
open court, which he refused to do, and he 
was thereupon suspended, and a sheriff ap- 
pointed by the court, who performed the usu- 
al ceremony. Opinions were handed down 
by Ludeling and Leonard, and on motion of 
the Packard Attorney General the court ad- 
journed. 

About noon the Nicholls police demanded 
the surrender of the building, and after some 
delay physical possession was taken, and the 
Nicholls Justices were brought into the court- 
room, where at noon the court was opened 
by the sheriff of Orleans parish. The com- 
missions of the Justices were spread on 
the minutes. Alfred Roman was appointed 
clerk, several motions and orders were enter- 
ed, and a distinguished lawyer of the New 
Orleans bar pronounced a mortuary eulogy — 
not on the old court, but on a recently de- 
ceased district judge — and thereupon the 
court adjourned out of respect to his memory. 

The capture of the courtroom and the in- 
stallation of these Justices was a political 
master stroke, and gave the Nicholls govern- 



CENTENARY OF LOUISIANA SUPREME COURT 



Iv 



nient a solidity and authority that was of 
immense service as matters then stood. For 
a time it was feared President Grant would 
order the dispersal of the court, but ultimate- 
ly he recognized the status quo and the Nich- 
olls Justices remained in possession of the 
courtroom, which was, moreover, guarded day 
and night by volunteet militia. After Presi- 
dent Hayes' inauguration the support of the 
army was withdrawn, and the Packard gov- 
ernment disintegrated. 

The court as thus constituted was Thomas 
Courtland Manning, of Rapides, Chief Jus- 
tice; Robert H. Marr, of Orleans, Alcibiade 
De Blanc, of St. Martin, William B. G. Egan, 
of Caddo, and William B. Spencer, of Con- 
cordia, Associates. They were without ex- 
ception leaders of the Democracy, and had 
taken an active part in aU the stirring events 
of reconstruction. 

The sixth Chief Justice had served on the 
bench during the War, as previously noted. 
Marr had been counsel in all the litigation 
from the Test Oath Case onward, by which 
much of the evil legislation of Congress 
against the Southern white people had been 
emasculated, and he was also one of the 
foremost inciters of the armed attack on the 
Kellogg government on September 14, 1874. 
De Blanc had been a soldier in Virginia with 
NichoUs, and he was, besides, the foremost 
citizen of his part of the state, enjoying there 
respect and veneration second only to that 
extended to Governor Nicholls. Spencer had 
held similar positions in his special bailiwick. 
In short, the new Justices were recognized 
everywhere as the flower of the Forlorn 
Hope which had incessantly waged war upon 
the Republican stronghold in this state dur- 
ing the seamy years of 1868-1876. 

There were scores of deserving lawyers 
who could have filled the positions with equal 
skill and dignity. This was particularly the 
case in Orleans parish, where the faith had 
been kept under circumstances of profession- 
al loss and judicial ostracism which few now 
living can appreciate. There v^'-as, however, 
no heartburning or sulking among the lead- 
ers. On the contrary, they continued the 
good fight here and in Washington until suc- 
cess crowned the patriotic labor. 



At its first sitting the court entered orders 
reassigning all cases under advisement, and 
also rearranged the fixed causes so that busi- 
ness could be resumed on the day succeeding. 
The installation was necessarily a dramatic 
spectacle — literally it was the act of an em- 
battled people, but the Justices gave no out- 
ward manifestation that any unusual or ex- 
traordinary event was in progress. The 
minutes make no note of the abortive ses- 
sion of the evicted judges, nor is any mention 
made of the physical capture of the seats. 

On the next morning, January 10, 1877, 
the routine business was taken up, and there- 
after the tribunal never faltered or delayed 
in the ordinary conduct of affairs. When 
the rival government passed away forever, 
the incident fell unnoted upon a court secure 
in the confidence and respect of all the peo- 
ple. 

Percy Roberts succeeded Gayarre as Re- 
porter, and his labors cover the prior 1877- 
April, 1880, that is, 29 to 32 La. Annual, in- 
clusive. The cases reported include many 
interesting commercial and general questions, 
and several of transcendent temporary im- 
portance. 

Justice Egan died in November, 1878, and 
Edward Douglass White, of Orleans, now 
Chief Justice of the United States, was ap- 
pointed on January 10, 1879, for the unex- 
pired term. He was seated January 13, 1879, 
and his first reported opinion is Charpaux 
& Valette v. Bellocq, 31 La. Ann. 165-169. A 
commonplace issue is here dissected by a 
sound civilian, and the conclusions are illumi- 
nated by an argument that could only have 
been made by a devoted student of the prin- 
ciples of the civil law. The opinion is, fur- 
thermore, a notable illustration of White's 
judicial methods — the concise, lucid state- 
ment, the separation of the issues, the mass- 
ing of words, each chosen for its power in 
the onset, the march of the argument to the 
irresistible conclusion — all these are devel- 
oped and displayed with an art and skill 
that delight the laboring craftsman. 

Considering the circumstances preceding 
their appointment, it is remarkable that few 
cases of a political nature reached this court. 
It was cuiTent gossip that there was an un- 



Ivi 



133 LOUISIANA REPORTS 



derstanding that an amnesty or truce would 
be observed by tlie new goYernment con- 
cerning all political offenses. 

In any event, tbere were only two cases 
wMch brought up tlie past. One was called 
a "State Trial," and was followed witb gen- 
eral interest. TMs was an indictment by 
the state against T. C. Anderson, member of 
the Returning Board, which it was claimed 
had reversed the will of the voters in the 
state and presidential elections of 1876. He 
was charged with altering, forging, and coun- 
terfeiting the returns of the presidential 
election in Vernon parish, and he was con- 
victed before the Superior Criminal Court 
of Orleans. The information was quashed in 
the Supreme Court on a technicality, and the 
defendant was not further prosecuted. The 
opinion of the court gave opportunity to ex- 
press some strong views concerning the of- 
fense, and it was, indeed, a case that could 
easily have been determined the other way, 
if the new regime had been imbued with a 
desire for revenge. See State v. Anderson, 
30 La. Ann. 557. 

The other case was the contested election 
over the office of sheriff of Lafourche, and 
it is historically interesting, as showing the 
political methods of that day. The court 
here determined in favor of the Democratic 
candidate. See Webre v. Wilton, 29 La. Ann. 
610. 

Two other cases should be noted: 29 La. 
Ann. 590, where the court decided that the 
decrees of courts held within the Confederate 
lines were valid and binding. The state of 
war then existing was shown by authority 
not to affect the ordinary course of legal 
proceedings with parties properly impleaded. 
The jurisdiction was maintained and the 
judgment held to be res adjudicata. 

In Southern Bank v. Mayor, etc., 31 La. 
Ann. 1, the constitutionality of the consoli- 
dated bond debt of the city of New Orleans 
was attacked, and the court sustained the 
assault and invalidated the issue. This case 
was an extremely important one, and its ef- 
fect was to release the municipality from a 
great part of its indebtedness. The decision 
was, however, reversed by the Supreme 
Court of the United States in 105 U. S. 302, 
26 L. Ed. 1090. 
The new government had scarcely been se- 



cured in its authority before an agitation for 
a new Constitution gathered head, and in 
July, 1879, a Constitution was adopted which 
shortened the terms of the Justices, and pro- 
vided for a reorganization of the court in 
April, 1880. 

The necessity for this action was not evi- 
dent then, and historically is classed under 
that ingratitude of rulers which the old 
proverb impresses. The executive, legisla- 
tive, and judicial departments had each borne 
the brunt, and through their efforts the state 
had been restored to its proper place among 
representative governments. A vote of no 
confidence was hardly to be expected^ nor is 
it justified in history, even though it con- 
stantly teaches that the ways of politics are 
not always scrutable. The writer still re- 
calls his own poignant suffering over the dis- 
card of these Justices, whom all the young 
men of that time regarded as personal 
friends, and to whose consideration he par- 
ticularly owes the ability to take an official 
part in this ceremony. 

The personal characteristics of the Justices 
of the court of 1877-80 needs a separate es- 
say. Indeed, a study of the work of the 
Chief Justice alone would yield much mate- 
rial to interest and entertain. The pure, 
chaste, and elegant English of his opinions 
was not infrequently sweetened by an Attic 
salt, though sometimes he used a coarser ma- 
terial. He had a dignity of person — a car- 
riage — which seemed very natural to his in- 
timates, but which was responsible for many 
stories. This habit affected his conduct in 
many little ways ; for instance, his signa- 
ture was seldom other than his surname, 
and, one of his contemporaries speaking of 
this affectation said, there were only a few 
men in the history of the race who claimed 
the right: "Moses, Caesar, Napoleon — Man- 
ning." 

After his retirement Judge Manning edited 
and published the unreported cases decided 
by the Supreme Court during his term as 
Chief Justice — a valuable addition to the re- 
ports of the state. 

IX. 1879-1898. 

The Constitution of 1879 created a Su- 
preme Court on the frame of its predecessors. 



CENTENARY OF LOUISIANA SUPREME COURT 



Ivii 



Tlie Justices were apportioned to four dis- 
tricts, covering tlie whole state. Two were 
allotted to tlie First District, comprising Or- 
leans, and tlie five circumjacent river par- 
ishes. The salary was reduced to $5,000, and 
the term lengthened to twelve years; the 
four Associates first appointed to go out at 
intervals of two years', their successors to be 
commissioned for the full term. 

Minimum jurisdiction was based on a val- 
ue in civil cases of $1,000, and appeals in 
suits for divorce and separation from bed 
and board were made justiciable by express 
grant, and for the first time in any Constitu- 
tion of the state. In other respects the pow- 
ers of the court remained as before, but a 
new element was added by article 90 provid- 
ing that it should "have control and general 
supervision over all inferior courts." The 
profession rather hastily assumed that under 
the writs granted in the same article the 
court was empowered to review any case 
where the issue of fact and law would be 
presented on the record, but the court quick- 
ly construed this grant in a way to shut off 
the legal avalanche that would have follow- 
ed the first impression. 

The Justices were appointed by Governor 
Wiltz, and the court organized on Monday, 
April 5, 1880, at New Orleans, with Edward 
Bermudez, of Orleans, Chief Justice; Felix 
P. Poche, of St. James, Robert B. Todd, of 
Morehouse, William M. Levy, of Natchitoch- 
es, and Charles E. Fenner, of Orleans, As- 
sociates. The new corps of judges were law- 
yers of standing in their respective domiciles, 
and three of them were destined to leave a 
deep impression on the judicial record. 

The seventh Chief Justice was a Creole, 
and yielded to none in pride of race and po- 
sition. He was the son of Joachim Bermud- 
ez, sometime parish judge in Orleans under 
the Constitution of 1812, who had ruled for 
many years with a determination and author- 
ity that furnished one of the best arguments 
for the abolition of that judicial system. 

The Chief Justice was in 1880 in his prime 
— a big, vigorous man, with a will of iron. 
He was a ripe scholar in the texts of the 
civil law, and was obsessed with a convic- 
tion that mastery of this science entitled his 
opinions to unqualified respect At the bar 



he was apt to be censorious, particularly to 
the juniors who crossed swords on his chosen 
field. There is no doubt that on the bench 
he earnestly endeavored to discover the light 
hidden perhaps under the bushel by counsel 
presenting such questions, but it was a great 
and costly expenditure of his strength and 
a severe trial to his temper, and he did not 
always persevere in his good intentions. He 
had a habit that grew on hun, to state a 
proposition and then to sustain it with great 
array of authorities, usually by citation of 
book and folio without the title of the case. 
Typographical and other familiar mischances 
sometimes made verification of these refer- 
ences a grim satire, which the bar was not 
slow to advertise. 

The senior associate, Poche, was also a 
Creole and a civilian, but he had more savoir- 
faire, and did not ride full tilt upon the point 
at issue with all his armor clanking and rat- 
tling. When he disagreed with an argument 
he could say so with as much skill as the 
Chief Justice, but he did not add to it the 
terror of voice and gesture, nor seek to over- 
whelm by a rush of citation. At first the 
two Creoles seemed to work with one mind, 
but Poche gradually ceased to lean on the 
Chief Justice, and when some case would 
bring about a disagreement the jurisprudence 
would be enriched by the clash of two strong, 
tenacious disputants, each pouring out a 
store of knowledge in the effort to overthrow 
the ideas of the other. 

Fenner was in all respects the antitype of 
these two. He was a master of precise 
thought, and clothed his argument in expres- 
sive language. Deeply versed in both sys- 
tems, he had in this respect an advantage 
over Bermudez and Poche — a mental ambi- 
dexterity which often carried the point by 
mere weight of reasoning. 

In the appointments Wiltz had given the 
shortest term to Fenner, four years, and he 
was reappointed in 1SS4. Levy had the six- 
year term, Todd eight, and Poche ten years. 
Levy died in the recess of 1882, and Judge 
Manning came back to the bench under ap- 
pointment of Governor McEnery, to fill the 
remainder of Levy's term. He thus achieved 
the distinction of being thrice a member of 
the court under different commissions and 



Iviii 



133 LOUISIANA REPORTS 



Constitutions. He was not reappointed, how- 
ever, and Lynn B. Watklns, of Red River, 
was named by McEnery on April 19, 1886, 
for tlie new term of twelve years, and he 
was reappointed in 1898. 

On the expiration of Justice Todd's term, 
Ex-Governor Samuel D. McEnery took the 
place by appointment of Governor Nicholls 
on June 11, 1888, and in 1900 he was reap- 
pointed for twelve years. 

Poche's term expired in 1890, and he was 
succeeded by Joseph A. Breaux, of New Iber- 
ia, who was appointed by Governor Nicholls 
on April 5, 1890, and reappointed in 1902. 

The term of Chief Justice Bermudez ex- 
pired in 1892, and he was replaced by Fran- 
cis T. Nicholls, appointed by Governor Fos- 
ter April 5, 1892. The eighth Chief Justice 
had just surrendered the Governor's chair to 
Foster, whose first act was this appointment. 
In April, 1904, Chief Justice Nicholls was re- 
appointed, but under the rule of the Consti- 
tution of 1898, he came back as an Associate 
Justice, and Breaux, the senior Associate 
Justice, advanced to the seat of Chief Jus- 
tice. 

In 1893 Fenner resigned, and Charles Par- 
lange was commissioned for the remainder of 
that term by Governor Foster on September 
1, 1893. 

In 1894 Parlange accepted President Cleve- 
land's appointment to be judge of the United 
States District Court for the Eastern Dis- 
trict of Louisiana, and accordingly resigned 
as Justice of the Supreme Court of Louisiana. 

On February 1, 1894, Henry C. Miller, of 
Orleans, was appointed in Parlange's place, 
and in 1896 he was commissioned for a full 
term. 

In 1894, Act 69, p. 80, the Legislature re- 
pealed the itinerary system under which the 
court had held country sessions in midsum- 
mer ever since 1812. By this statute the 
seat of justice was fixed at New Orleans, 
and all appeals were made returnable thereto 
at stated periods for each district. For some 
time before the passage of the act of 1894 
the court was sitting in the summer and 
fall of each year at Monroe, Opelousas, and 
Shreveport 

In 1896, Act 66, p. 98, the court was au- 
thorized to hear and decide in chambers out 



of term time all matters addressed to its su- 
pervisory jurisdiction. 

Under the rule established in these laws 
the court sat at New Orleans from the first 
Monday of November to the end of June. 

This was afterwards changed to begin on 
the first Monday in October, by Act 149 of 
1906. 

By Act 92 of 1900, p. 150, the old system 
of particular return days was abofished, and 
now all appeals are returnable in not less 
than fifteen nor more than sixty days. 

In 1897 Justice McEnery resigned to accept 
the office of Senator from Louisiana in the 
Congress of the United States, and on March 
4, 1897, Governor Foster appointed Newton 
C. Blanchard for the remainder of McEnery's 
term. The latter had just finished his term 
as Senator, from Louisiana. 

The Reporter of the decisions of the Su- 
preme Court became a constitutional officer 
in 1879 (art 88). 

During the period 1880-1897 the opinions 
were reported by Henry Denis, of the New 
Orleans bar, from 1880 to 1895, covering 32 
La. Annual 521 to 46 La. Annual, inclusive. 
Commencing with 47 Annual (1895), Walter 
H. Rogers, also a New Orleans lawyer, re- 
ported the decisions until 50 Annual, inclu- 
sive (1898). 

The work of the court under the Constitu- 
tion of 1879 has been part of the every-day 
life of your Honors, and is, I am glad to 
say, equally familiar to many of those who 
are participating in this ceremony. Speak- 
ing with first knowledge, Judge Fenner said, 
in his eulogy on Poch§ June 22, 1895 (45 
An.), that the work w^as performed "in a 
formative period of our jurisprudence, in- 
volving the interpretation of a new and 
original Constitution, bristling with novel 
principles, powers, and limitations, and re- 
quiring the entire readjustment of our juris- 
prudence on many subjects and its adapta- 
tion to changed conditions"; and he said 
further that the court had succeeded "in 
the momentous task of putting into opera- 
tion the complicated machinery of the new 
government, so that it should run with the 
least possible friction or injury to essential 
principles or individual right and govern- 



CENTENARY OF LOUISIANA SUPREME COURT 



lix 



mental power, and above all in harmony with 
the Constitution of the United States." 

X. 1898-1913. 

On November 12, 1898, a new constitution 
was adopted, and great and fundamental 
changes were made in the Judiciary system of 
the state. The appellate jurisdiction of the 
Supreme Court was broadened, and the mini- 
mum value of $2,000, established as a basis 
by the constitutional amendment which had 
been proposed by Act 125 of 1882, was re- 
tained. Original jurisdiction was conferred 
wherever necessary to enable it to determine 
questions of fact affecting its own jurisdic- 
tion in any case pending hefore it. A new 
matter of great importance was the grant of 
original jurisdiction in all matters touching 
professional misconduct, with power to dis- 
bar. 

The salary was left in the legislative dis- 
cretion, not to be less, however, than $5,000. 
The term remained twelve years, and the 
Governor retained the appointive power, but 
a new feature was introduced, providing that 
when the office of Chief Justice becomes 
vacant the Associate Justice longest in serv- 
ice shall by virtue of that service become 
Chief Justice. 

The session was limited to New Orleans 
without any authority in the Legislature to 
prescribe other places. 

Power was granted to the court to provide 
for reporting the decisions and for the pub- 
lication thereof by contract to the lowest bid- 
der. Publication of concurring and dissent- 
ing opinions was, however, prohibited. The 
judicial history of our race should have been 
a warning against legislation of this char- 
acter. 

A meager allowance was made for the 
employment of amanuenses by the Justices. 

The Legislature was required to make pro- 
vision for a suitable and commodious build- 
ing for the court and its records — a clause 
which was carried into effect in a worthy 
and generous way by the erection of the 
house in which the court now sits. 

At the time the Constitution of 1898 be- 
came effective the roll of the Supreme Court 
was as follows: NichoUs, Chief Justice; 
Watkins, Breaux, Miller, and Blanchard, As- 
sociates. 



The schedule provided that the Supreme 
Court here established should be construed 
to be the same court as the one then existing, 
and that all persons in office at the adoption 
of the Constitution should serve until the 
expiration of existing terms. 

In 1899 Justice Miller died, and Francis 
A. Monroe was appointed on March 22, 1899, 
and served the remainder of Miller's term, 
and in 1908 was elected by the people and 
without opposition to the term he is now 
filling — the first judge of the Supreme Court 
to be elected by the people since Duffel's 
election in 1860. At the time of his appoint- 
ment Justice Monroe had been sitting con- 
tinuously since 1876 on the district bench 
of Orleans parish. 

In 1901 Justice Watkins died, and Olivier 
O. Provosty, of Pointe Coupee, was appointed 
his successor on March 16, 1901, and in 1910 
was elected to a new term. 

In 1903 Justice Blanchard resigned in or- 
der to enter the canvass for the Democratic 
nomination for the oflice of Governor of Loui- 
siana, and Alfred D. Land was appointed to 
the vacancy by Governor Heard on October 
17, 1903. Justice Land was a candidate for 
renomination, but was defeated by Luther E. 
Hall, now Governor of Louisiana, who re- 
signed before his judicial term began, and 
after being elected Governor. Thereupon Jus- 
tice Land was re-elected in 1912 without op- 
position. 

On April 4, 1904, Justice Breaux was ad- 
vanced to Chief Justice, under the rule of 
seniority, the term of Chief Justice Nicholls 
having expired. The Ninth Chief Justice 
will continue to hold that office until April, 
1914, when his second term of twelve years 
will have expired. 

In November, 1904, an amendment to the 
Constitution was adopted, making the office 
of Justice of the Supreme Court elective by 
the people. 

Another amendment of the same year 
leaves the court discretion to regulate its 
session, provided it shall begin "not later 
than the first Monday in the month of No- 
vember, and ending not sooner than June 
30th." However, by Act 149 of 1906, before 
referred to, the Legislature itself fixed the 
term to begin on the first Monday of October. 



Ix 



133 LOUISIANA REPORTS 



In 1906 (Act 74, p. 115) the Legislature in- 
creased the salary to $6,000. 

In 1910, by constitutional amendment, it 
was established that any Justice may retire 
at the age of seventy-five, on full pay, after 
not less than fifteen years' continuous serv- 
ice. 

In 1911 Justice Nicholls retired under 
this law, and Walter B. Sommerville, of Or- 
leans, was elected in his place in March, 1911. 

In the October term, 1910, the Supreme 
Court moved from the Cabildo into the new 
courthouse. 

And now, on this 1st day of March, 1913, 
the court is composed of Joseph A. Breaux, 
Chief Justice ; Francis A. Monroe, Olivier O. 
Provosty, Alfred D. Land, and Walter B. 
Sommerville. 

Under the authority conferred by the Con- 
stitution, the contract for the publication of 
the Reports was first let to a local publisher 
who printed the volumes down to 108 La., 
inclusive. Thereafter the West Publishing 
Company received the contract. It had been 
publishing a rival edition. With volume 109 
the Report appears in double-column pages. 

In 1900 (Act 87, p. 135) the Legislature 
authorized the State Printer, with the ap- 
proval of the judges of the Supreme Court, 
to contract with "a competent lawyer" to 
edit and index the decisions of the court be- 
fore publication thereof. The act eliminated 
the ofiice of "Reporter to the Supreme 
Court." and the opinions are now published 
with the name of the editor. 

Thomas H. Thorpe succeeded Walter H. 
Rogers as Reporter in 1899 (51 An.), and he 
became the first editor under the act of 1900, 
and continued in office until 1907 (118 La.), 
when he was succeeded by Charles G. Gill, 
who is the present incumbent. 

In June, 1900, the court by order closed the 
series Louisiana Annual, and directed that 
the name Louisiana Reports should hereafter 
be used, and that the volumes should be 
numbered in sequence from 1 Martin. Vol- 
ume 52 is the last Annual, and Vol. 104 La. 
Reports, of 1900-1901, begins the new series. 
These volumes are published whenever the 
opinions make 900 pages of printed matter. 

These annals ought not to close without 
a reference to Thomas McCabe Hyman, late 



Clerk of the Supreme Court. He was one of 
the sons of the Chief Justice of 1864-68, and 
from early youth had been attached to the 
clerk's office. He was singularly gifted in 
the art of conducting a public office. He was 
the trusted friend of court and bar, and his 
sudden and unexpected death touched a 
sympathetic chord in every precinct where 
lawyers gather. 

XI. 

I have endeavored to tell the early history 
of this court with as much detail as the oc- 
casion permitted. I have used some discre- 
tion with the central portion of the story, 
and, for reasons which are obvious, have con- 
densed the concluding period to a meager 
record. I have not attempted to follow the 
early or later careers of the judges, except 
where some incident has thrust itself across 
my path, but I have told sufficient to indicate 
that this bench has been occupied by many 
men whom the state delighted to honor, and 
who have, as a body, deserved the respect of 
the historian. A more minute inspection 
might show here and there an individual 
blemish, but, considering that in the space 
of one hundred years some sixty-five judges 
have administered the law in this place of 
last resort, it is on the whole a pleasing and 
instructive verdict that history must record. 

In the early years of our jurisprudence the 
judges were unhampered by constitutional 
and legislative restrictions, and they did not 
find it difficult to do exact justice by hew- 
ing a path close to conscience, common sense, 
and just reasoning. For many years the 
tendency of legislation has been to restrict 
the magistrates by hard and fast rules, but 
aside from this there has been so much writ- 
ten and said, so much discussed and decided, 
in the courts of the world that there is now 
little room for original thinking and not 
much opportunity to create new precedent. 

Viewing the jurisprudence of a hundred 
years with these thoughts in mind, we are 
constrained to insist that the judges of to- 
day have nevertheless made an impression 
upon their time as vivid and as lasting as 
that made by their great predecessors. 

Under the text of our Code the judge is 
bound to proceed and decide according to 
equity where there is no express law, and, 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixi 



to decide equitably, an appeal is made to nat- 
ural law or received usages, when positive 
law is silent. Under the grant of power in 
the last Constitution this court is able to 
reach usurpation and injustice, whether at- 
tempted by or against the highest or the 
lowest denizen of the land. Its capacity for 
good is bounded only by the physical strength 
of its membership. Your right to review 
the facts is the most precious possession of 
the litigant. There has been complaint that 
it is not always possible to acquaint the en- 
tire bench with the facts of each case, and 
there have been occasions when these fancied 
or real complaints have been made matters 
of public discussion. This court has power 
to minimize such complaints, and under Act 
70 of 1884, page 93, it is believed that you 
can establish any rule which would tend to 
a better administration of justice. It is 
thought that a printed record would materi- 
ally assist in the study of the facts, together 
with a requirement that counsel should, in 
briefs, admit or concede undisputed facts; 
or, better still, that they should draw a state- 
ment of facts verified by the printed record. 
All these things might be effected by a mere 
order of the court, and such order would 
doubtless meet universal approval. 

The New Practice Act of 1912 (157, p. 225) 
has furnished an entering wedge which should 
be driven home by the appellate court. 

The fundamental features of the high court 
of Louisiana, wherein it differs in whole or 
in part from all other tribunals, are: that 
it sits as a court of law and equity, exercis- 
ing both functions in the same case, under 
pleadings wherein the issue is reduced to 
its simplest form. That it is bound to re- 
view the facts in all civil cases within its 
appellate jurisdiction. That it may, under 
such review, remand, affirm, or reverse, or 
render the proper judgment which the facts 
and the law or the justice and the right of 
the case require. That it may supervise and 
control the course of any inferior court in 
any case when justice requires its interven- 
tion, and as a corollary render such judg- 
ment as the circumstances require. That, 
aside from this control over the issues and 
the litigants, it is vested with control over 
the officers who minister to justice at its 
bar. 



With all this vast power the machinery of 
the court should move resistlessly to the end 
of complete justice, based upon a thorough 
understanding and appreciation of the facts 
of the case. Holding fast to the idea that 
the right of review upon the facts must never 
be yielded, it is the hope and the prayer of 
all who serve honestly and fearlessly before 
you that some method may soon be found 
for presenting the issue in this court in such 
shape that no man may ever hereafter be 
able to say, "We have been judged without 
proper knowledge of the record." 

When I was selected for the task now 
completed I said that no one man could do 
the subject justice within the time allotted 
for its fulfillment, and that first impression 1 
now sorrowfully confirm. The field of infor- 
mation is uncharted; the records are incom- 
plete; the lives of the men who have made 
our jurisprudence are to a large extent un- 
written; and I am conscious that my effort 
is at best only a mere scratching of the sur- 
face, but, after having lived with my task 
during every moment that I could steal from 
other duties, I leave it with the conviction 
that there lies here for some master mind a 
great and splendid story which, when writ- 
ten, will light up the history of Louisiana 
and confer a laurel upon the historian. 



The Jurisprudence of the Supreme 
Court of Louisiana. 

By Charles Payne Fenyier, of the Xeir Orle- 
ans Bar, Professor of Civil Law, Tu- 
lane University Laiv ^chooh 

We have assembled to-day, lawyers for the 
most part, to celebrate the centennial an- 
niversary of the organization of the Supreme 
Court of the state, the tribunal which for a 
hundred years, except in the comparatively 
rare cases in which federal questions have 
been presented, has been the last resort of its 
citizens in controversies involving their rights 
to life, liberty, property, and the pursuit of 
happiness. 

It is an impressive occasion. 

It would be impossible to overestimate the 
importance of the function in our social and 



Ixii 



133 LOUISIANA REPORTS 



governmental system whicli has been dis- 
cliarged by this court, or tbe debt of grati- 
tude under whicb it has placed the people 
of the state for the manner in which in the 
main that function has been discharged. 

It is in every way fitting, therefore, that 
on this, its centennial anniversary, we, its 
officers, should appropriately commemorate 
its services. 

The occasion is naturally suggestive of 
reminiscences of the bench and bar, of the 
great judges who have in the past occupied 
the bench, and of the great lawyers who in 
the past have striven mightily at this bar — 
reminiscences which could not fail to be in- 
teresting and inspiring. But these are to be 
dealt with by others, abler to do so than 
myself. 

I have been asked to say something in re- 
gard to the jurisprudence of the court. 

I confess that I have been puzzled as to 
how to deal appropriately with the subject. 
We lawyers find it difficult enough, heaven 
knows, to deal with the jurisprudence of the 
court on the particular questions which are 
presented to us from day to day ; and to be 
called upon to discourse on the general juris- 
prudence of a hundred years is indeed a 
trifle staggering. 

In the difficulty in which I found myself 
after I had accepted this portentous call, it 
occurred to me that perhaps a few observa- 
tions in relation to the extent to which, as 
the result of our peculiar system of law, our 
jurisprudence differs from that of our sister 
states would not be deemed wholly inappro- 
priate to the occasion. 

There is, I think, a very general impres- 
sion among our common-law brethren that 
the nature and extent of this difference are 
very much greater than they really are. 
Their attitude with regard to our courts is 
well illustrated by a remark attributed to 
one of the Justices of the Supreme Court of 
the United States after listening to an argu- 
ment in a Louisiana case. He is said to 
have remarked to Judge White: "Brother 
White, I think you had better take that case. 
I should not like to undertake it. I fear I 
might be homologated." 

It is true, of course, that our twmiuology 
is in some respects very different from that 
of the common law, and that upon many im- 



portant subjects our law and jurisprudence 
differ radically from those of the common- 
law states. It is true, nevertheless, that our 
jurisprudence generally differs from that of 
the common-law states to nothing like the 
extent that is generally supposed by com- 
mon-law lawyers, and to nothing like the ex- 
tent that might perhaps be a priori expected 
when it is considered that we have a writ- 
ten code of substantive law based upon the 
civil as contradistinguished from the common 
law. 

For despite this fact, it Is true that in a 
very large proportion of the cases decided by 
this court the law to be applied is sought 
from the same sources and by the same 
methods as are resorted to in the common- 
law states of the Union. 

From the point of view of theory, the ju- 
risprudence of a state in which the whole 
body of the substantive law has been subject- 
ed to the process of codification might be 
expected to differ radically in nature and ex- 
tent from that of states in which prevails the 
so-called unwritten law. 

One of the chief purposes of codification is 
to make the law certain, and in proportion 
that this purpose is accomplished, it might 
naturally be supposed that the volume of liti- 
gation and of jurisprudence (using the latter 
term in the sense of reported judicial deci- 
sions), would be correspondingly diminished. 

And so, too, whether in regard to judicial 
action in the domain of the unwritten law, 
we agree with the great apostle of codifica- 
tion, Jeremy Bentham, that the judges really 
make the law, or with his opponents that 
they simply declare it, it is quite obvious 
that the function of a court in interpreting 
and enforcing a written statute differs very 
radically from that performed by a similar 
tribunal in ascertaining and applying the un- 
written law. 

With all due appreciation of the force of 
the claim made by the opponents of codifica- 
tion that under the system of unwritten law 
the judges do not make but simply ascertain 
and apply the law, it is still true, I thinks 
that the difference between the function dis- 
charged by the judges in the two cases is 
very great, and may, without much inaccura- 
cy, be described as the difference between 
declaring what the law is and declaring 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixiii 



what in their opinion the law ought to be, 
always, of course, in the latter case, with 
proper regard to established precedents and 
to the rule of stare decisis. 

In the one case, the court is concerned 
simply with the meaning of certain written 
words; in the other, it is called upon, in 
the light of custom, j-eason, and precedent 
decisions based upon the same considerations, 
to announce what, in its opinion, is the rule 
of law which ought to be applied in the par- 
ticular case presented for determination. 

Theoretically, therefore, it might very nat- 
urally be supposed that the body of juris- 
prudence of a state in which the substantive 
law has been codified would differ very ma- 
terially, both in volume and in kind, from 
that of the states in which the substantive 
law is in the main unwritten, in the sense 
that it has not been enacted in the form of 
a statutory command. And where, as in the 
case we are considering, the code of sub- 
stantive law in the one state is based upon 
the civil law as contradistinguished from the 
common law prevailing in the others, we 
might naturally expect the difference in 
question to be still more radical. 

According to the theory of the advocates 
of codification, we should expect, in the first 
place, that as the result of the certainty at- 
tained through codification, the volume of 
jurisprudence in the code state would be 
very much smaller. 

We should expect, in the second place, to 
find the jurisprudence of the code state to 
consist in the main simply of codal interpre- 
tations, or, as one of the violent opponents 
of codification expressed it, simply "in the 
interpretation of words." 

It might be expected, finally, that there 
would be in every branch of the law funda- 
mental differences of jurisprudence reflecting 
the differences between the civil and common 
law systems. 

Whatever may be true in this regard in 
the case of other states and countries which 
have enacted codes of substantive law based 
upon the civil-law system, I think it must be 
admitted that in Louisiana, particularly of 
recent years, these differences are much less 
marked than might, from the point of view 
of the believers in the theory of codification, 
be a priori expected. 



I do not think, in the first place, that it 
can be justly claimed that as the result of 
codification, we have attained a greater cer- 
tainty in the law which has relatively dimin- 
ished the volume of litigation, even as re- 
gards those subjects which are specifically 
covered by the Code. Our experience and 
that of France in this respect would seem 
to justify the claim of the opponents of 
codification that the limitations of human 
capacity for written expression are such as 
to make the attainment of certainty in a 
written code of substantive law well-nigh 
impossible. 

In France, for instance, I think the follow- 
ing statement by an eminent advocate of the 
theory of codification, Mr. Sheldon Amos, 
must be admitted to be well founded. He 
says: 

"It is well known, for instance, that the set 
of French Codes, which in time became the most 
comprehensive and self-dependent of all, have 
been completely overridden by the interpreta- 
tions of successive and voluminous commenta- 
tors, as well as by the constantly accruing deci- 
sions of the Court of Cassation. In France, as 
was intimated before, in treating of another 
subject, there can be no reliance in any given 
case as to whether a judge will defer to the au- 
thority of his predecessors, or will rather recog- 
nize the current weight attached to an eminent 
commentator, or will extemporize an entirely 
novel view of the law. The greatest possible 
uncertainty and vacillation that have ever been 
charged against English law are little more 
than insignificant aberrations when compared 
with what a French advocate has to prepare 
himself for when called upon to advise a client." 

With us, partly, perhaps, because we have 
had no commentators, but principally be- 
cause we have fully adopted the common rule 
of stare decisis, the uncertainties of codal 
interpretation have not been so marked. 
Speaking relatively, however, I do not think 
it can be justly claimed that our jurispru- 
dence exhibits any material gain in legal cer- 
tainty as the result of codification. 

It is certainly not true either that our 
jurisprudence consists wholly, or indeed in 
the main, of mere codal interpretations, or 
"in the interpretation of words." The most 
cursory examination of our reports, particu- 
larly those of comparatively recent years, 
will discover that in a very large proportion 
of the decided cases the rule of law applied 
has been deduced from the same sources and 



Ixiv 



133 LOUISIANA REPORTS 



by exactly the same process as would be re- 
sorted to in a similar case in any common- 
law state, and there are lawyers in this city 
engaged in important branches of practice 
who rarely have occasion to consult the Code. 
That this is due in some measure to the 
fact that both our judges and lawyers too 
frequently "sin the sin" of resorting to com- 
mon-law authorities when the true rule for 
decision might be found in the Code I think 
must be admitted. Forming as we do, in 
effect, an integral part of a much larger com- 
munity with the other component parts of 
which we are united by the strongest ties of 
race, blood, and common interest, and in all 
of which the common-law system prevails, 
there is naturally manifested in our juris- 
prudence a strong and ever-present tendency 
to conform to common-law standards. And 
that this has resulted not infrequently in 
unjustified departures from the letter of the 
Code is doubtless true. It is to this tenden- 
cy which Mr. James C. Carter, sometime lead- 
er of the American bar, referred, when in 
one of his philippics against the theory of 
codification, he said in reference to Loui- 
siana: 

"The defects so strikingly characteristic of 
French jurisprudence would have been repeated 
here (in Louisiana) but for the practical good 
sense which has been exhibited by the bench and 
bar of that state. Largely imbued with the prin- 
<?iples and methods of the English common law, 
they have looked to that body of jurisprudence, 
so far as the Code permitted them, as containing 
the real sources of the law, and have fully 
adopted its maxim of stare decisis. Nothing 
is more observable than the extent to which the 
English and American reports and text-books 
are cited as authoritative in that state. It 
would seem that the courts, except where there 
is some provision of the Code directly in point, 
and except in those cases where the civil law, 
which lies at the basis of the legal system of 
Louisiana, notoriously differs from the common 
law, seek the rule in any given case, in the 
same quarters in which it is sought by us, and 
then inquire, if the occasion arises, whether 
there is anything in the Code inconsistent with 
the rule thus found." 

The appeal here to common-law authori- 
ties is justified, moreover, in many cases, be- 
cause upon many subjects, as the result of 
the extent to which the earlier common-law 
judges, in the formative period of English 
Jurisprudence, adopted the principles of the 



civil law, there are no very material differ- 
ences between the two systems. 

The very liberal admixture of common- 
law principles and methods of decision in 
our jurisprudence is, I think, due, in the 
main, however, to quite another cause, viz., 
that in a very large proportion of the cases 
which are presented to our courts our Code 
furnishes no definite rule for decision. 

And this must ever be true with any code 
of substantive law. Civilization has certain- 
ly not yet attained a condition of stability 
in which it is possible, in the nature of 
things, that statutory rules can be enacted 
at any one time to cover all the varying 
groupings of fact which may arise in the 
future, and it is therefore entirely impos- 
sible to wholly supplant the unwritten law. 

This was not, indeed, the theory of Bent- 
ham, the great English apostle of codifica- 
tion. His theory was that nothing could be 
law except an enactment of the Legislature; 
that the so-called unwritten law, or, as he 
called it, "judge-made law," should be wholly 
extirpated; that it was practicable to pro^dde 
by statute for every future case; and that 
if a case should arise for the decision of 
which no statutory rule could be found, it 
should simply remain undecided. 

In his celebrated letter to President Madi- 
son, he said: 

"Yes, sir, so long as there remains even the 
smallest scrap of unwritten law unextirpated, 
it suffices to taint with its own corruption- 
its own inbred and incurable corruption — what- 
soever portion of statute law has ever been, or 
can ever be, applied to it." 

Most of his disciples, however, have aban- 
doned this arrogant theory of their master. 
They admit that it is impossible to provide 
in a code rules for the decision of all pos- 
sible future cases, and that when a case does 
arise which is not covered by the Code, it 
must nevertheless be decided, and that in such 
case the unwritten law must be resorted to. 

This was admitted by Mr. Field, who in 
his Introduction to the Civil Code, proposed 
by him for adoption in New York, said: 

"This Code is undoubtedly the most impor- 
tant and difficult of all ; and of this it is true 
that it cannot provide for all possible cases 
which the future may disclose. It does not 
profess to provide for them. All that it pro- 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixv 



fesses is to give the general rules upon the sub- 
jects to which it relates which are now known 
and recognized." 

And such was the theory of the codifiers 
of France and Louisiana. 

In France, article 4 of the Code Napoleon 
reads: 

"The judge who shall refuse to decide a case 
upon the ground that the law is silent, obscure, 
or insufficient may be prosecuted as guilty of a 
denial of justice." 

That under the terms of this article it is 
the duty of the French judges, in all cases 
presenting questions in regard to which the 
statute law is silent or insufficient, to decide 
the question nevertheless in accordance with 
equity, reason, and custom, in other words, 
to resort for decision to the unwritten law, 
is well settled. The article was inserted in 
view of the injustice which had resulted in 
France prior to the Code Napoleon from the 
exercise by the judges of the power to refer 
such cases to the legislative department of 
the government for solution; the solution be- 
ing by way of making a law to fit the case. 
It was admitted that the exercise by the 
judges of the function thus delegated to them 
was in a certain sense legislative. But as 
between what seemed to them two evils, that 
of making the judge a legislator or that of 
making the Legislature a judge, the French 
codifiers, for obvious reasons, chose the for- 
mer as the lesser. 

And so with us it is expressly provided by 
article 21 of the Code: 

"In all civil matters, where there is no ex- 
press law, the judge is bound to proceed and 
decide according to equity. To decide equi- 
tably, an appeal is to be made to natural law 
and reason or received usages, where positive 
law is silent." 

It is clear that here is a recognition of the 
unwritten law in the broadest sense, with a 
designation of the sources from which it is 
to be derived that are identical with those 
to which common-law judges have resorted 
from the beginning. And when it is remem- 
bered that our Code was framed nearly a 
hundred years ago, and that there has prob- 
ably never been a period in which the novel- 
ty of the conjunctures challenging judicial 
inquiry has been greater than during the 
133 La.— e 



period since that time, it ought not to be a 
matter of surprise that a very large propor- 
tion of our jurisprudence has consisted in 
the declaration and application of the un- 
written law. 

And when we consider further the inevita- 
ble tendency toward uniformity of custom, 
and therefore of law and jurisprudence, 
which always obtains among people united as 
are the people of this state with those of 
her sister states, it should be still less a 
matter of surprise that our judges, in seek- 
ing to decide according to equity, reason, and 
received usages, should have resorted in the 
main to the majestic fabric of common-law 
jurisprudence rather than to the compara- 
tively unfamiliar and inaccessible authori- 
ties of the civil law. 

And so it has resulted, as might have been 
expected by any student of the forces which 
always and inexorably shape the law and ju*- 
risprudence of any free people, that despite 
the fact that a hundred years ago we adopt- 
ed a code of substantive law based upon the 
civil, as contradistinguished from the com- 
mon law, our jurisprudence is to a very large 
extent based, and confessedly based, upon 
the common law. 

I trust that nothing that I have said will 
be construed as an attack upon the theory of 
codification, or as indicating any general dis- 
satisfaction with the practical results of the 
application of that theory in Louisiana. My 
purpose has been simply to indicate some of 
the limitations of the theory as discovered 
in the jurisprudence of the state. I have not 
intended to discuss or to express any opin- 
ion upon the general expediency of the codifi- 
cation of private substantive law. And by 
private substantive law, I mean the law regu- 
lating the conduct of men in their relations 
with each other as individuals, as contradis- 
tinguished from the law regulating their con- 
duct in relation to society or government, 
which may be termed "Public Law." 

As a result of the scant study I have been 
able to give the subject, my impression is 
that the expediency of such codification de- 
pends upon the conditions existing in the 
state or country in which it is proposed, and 
that no general rule can be safely announced 
on the subject. For Louisiana, in view of 
the conditions which existed at the time she 



Ixvi 



133 LOUISIANA REPORTS 



was admitted into the Union, I am quite 
convinced that codification was necessary. If 
I lived in a common-law state of this Union, 
I think I should be opposed to it. The ques- 
tion is, however, too big for any one to ven- 
ture a definite judgment upon it without spe- 
cial study, and certainly entirely too big to 
be treated incidentally. 

I should also be very much concerned if 
I thought any one was likely to construe any- 
thing I have said to-day as indicating a lack 
of appreciation of the civil law, or a prefer- 
ence for the common law as a system of juris- 
prudence. This is a question entirely dis- 
tinct from the question of codification. The 
civil or Roman law had been developed by 
the great Roman jurisconsults into the most 
scientific and consistent system of unwritten 
law that the world has yet seen; four cen- 
turies before the Corpus Juris Civilis was 
promulgated, and the Pandects, or Digest, of 
Justinian, the one of the three works con- 
stituting the Corpus Juris that covered the 
field of private law, was really not a code 
in the modern sense of that term. It was an 
abridgment of the treatises of the great 
jurisconsults of a former age of Roman ju- 
risprudence, which during that age were au- 
thoritative in much the same sense that ju- 
dicial opinions are authoritative under the 
common-law system. For several centuries 
prior to the accession of Justinian the juris- 
prudence of Rome had sadly degenerated. 
As noted by Gibbon, her great jurisconsults 
had been supplanted "by an ignoble multi- 
tude of Syrians, Greeks, and Africans, who 
flocked to the imperial court to study Latin 
as a foreign tongue and jurisprudence as a 
lucrative profession." In so far as private 
law is concerned, the work performed under 
Justinian was, as above stated, the confec- 
tion of an abridgment or digest of the 
treatises of the earlier Roman jurisconsults, 
which when completed was declared to be au- 
thoritative law. It resembled a code in 
much the same sense as would an abridg- 
ment or digest of certain selected decisions 
of common-law courts which might be de- 
clared by statute in a common-law state to 
be the only decisions entitled to force and ef- 
fect as authoritative law. It did not change 
the system of Roman jurisprudence as es- 
sentially a system of unwritten law. 



The truth would seem to be, as claimed by 
Mr. Carter in his work, "Law, Its Origin, 
Growth and Function," that the earliest code 
of substantive law, in the modern sense of 
the word "code," was that adopted in Prus- 
sia in 1751. 

As, of course, is well known, the Corpus 
Juris Civilis was completely submerged and 
lost to view during the Dark Ages. From 
the time when it was afterwards discovered, 
the Pandects or Digest, being that portion 
of the work which covered the field of pri- 
vate law, has exerted an infiuence upon fhe 
law and jurisprudence of all civilized coun- 
tries, not excepting England, which has jus- 
tified the fine phrase: "Rome rules us still, 
not by reason of her power, but by the pow- 
er of reason." 



The Louisiana Bar, 1813-1913. 

By Judge T. V. W. Ellis, Benior Judge of the 
Civil District Court. 

May it please your Honors, Ladies and 
Gentlemen : We are here in this home of the 
Supreme Court of Louisiana at the invitation 
of its judges, in honor of the one hundredth 
anniversary of its organization. 

The presence of the learned justices, and 
their invited guests, the judges of the vari- 
ous state courts, the Governor of the state, 
members of the General Assembly, and the 
heads of the several administrative depart- 
ments, signalizes the gathering of all, who 
represent in behalf of the people the sover- 
eign powers of our state. 

We have, also, presiding with our Justices, 
the judges of the federal courts, for this ju- 
dicial circuit and district, who have, for the 
day, laid aside their labors to join in this 
celebration. 

Distinguished members of the reverend 
clergy are also with us, to lend the recogni- 
tion of our holy religion, and to pronounce 
its prayers and benedictions. 

The lawyers of our state, with the presi- 
dent of the Louisiana Bar Association as 
master of ceremonies, are here in large num- 
bers, as also are the mayor of our city, and 
other representatives of its municipal gov- 
ernment, together with very many of our fel- 
low citizens. 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixvii 



And last, but best of all, bave come many 
representatives of tbe splendid womanhood 
of our state, to add tbe witchery of their 
charming presence, in sympathetic accord 
with tbe purposes of this impressive occa- 
sion. 

They are thrice welcome here, as they join 
us all in our salutations to this august tri- 
bunal, and in our invocation, that God 
may ever "bless the state of Louisiana, and 
this honorable court." 

Tbe first thought pressing for utterance is 
that of reverent gratitude to the Great Au- 
thor of our being — the King of Kings, the 
Judge of Judges — that our lives have been 
prolonged to see this auspicious day, and 
that, through all the vicissitudes of 100 
years of her checkered, and sometimes storm- 
riven, career. He has vouchsafed to our state 
existence as a sovereign among the sover- 
eigns composing the Federal Union, and to 
her people the blessings of enlightened gov- 
ernment and of civil and religious liberty. 

The second is one of gratification that this 
tribunal has given tbe wholesome example 
that respect should be cherished for the mem- 
ory of those who have wrought well in their 
day, in the formation and preservation of 
this fabric of beneficent government, with 
just pride for achievements, that go to make 
up the glory of the state. 

It has been said, that a people without 
patriotic sentiment is ripe for the despot's 
rod. 

With glad hearts we all join in the celebra- 
tion of this impressive anniversary. 

Distinguished lawyers have given us, in 
eloquent terms, the story of this historic 
court, and of tbe jurisprudence it has been 
upbuilding in the last 100 years. 

The request that brings me here suggested 
that, as an older member of the state judi- 
ciary, I should, in behalf of that department, 
voice its appreciation of the lawyers compos- 
ing the Louisiana bar of the past century. 
The kind terms in which this request was 
communicated will be a pleasing memory 
with me while life shall last. 

My theme, therefore, is the Louisiana bar. 

As introductory to any notice of the bar, 
as a body of lawyers, it will be useful to 
consider the qualifications necessary to enti- 
tle the individual to admission to its mem- 



bership. The first requisite is that he be a 
citizen of the state, of sufficient residence to 
make him known to the community where he 
lives, and that he must be a person of good 
moral character. Beyond this, he must es- 
tablish that he has spent the prescriled time 
in the study of the law in its various branch- 
es, as laid down by statute, or by the rules 
of the Supreme Court, and he must prove, by 
the test of an examination before a commit- 
tee of lawyers selected for the purpose, and 
a final examination before the court which 
has power to grant or deny the license, that 
he has the mental aptitude and has acquired 
the legal learning necessary to equip him for 
his duties as a lawyer. 

And, last of all, he must take a solemn 
oath, not only to support the Constitution 
and laws of the United States and of the 
state, but, also, that in his practice he will 
demean himself honestly and v/ith fidelity 
to every duty and trust with which he may 
be charged. 

All this accomplished, he becomes a mem- 
ber of the bar, and as such an officer of the 
court, with all the privileges this relation im- 
plies, but subject to disbarment for miscon- 
duct or willful breach of the duties that de- 
volve upon him as a lawyer. 

To his client, he owes, and is held, to the 
highest standard of fidelity. It is his duty to 
give to the advocacy or defense of his cli- 
ent's cause his best endeavors within the lim- 
itations of personal and professional pro- 
priety. He is barred from disclosing the ad- 
missions or confessions of his client, given to 
him under the veil of his employment, and 
under no circumstances can he acquire inter- 
est antagonistic to those of his client in the 
subject-matter wherein he is engaged. 

In all his relations as a practitioner his 
position is one of high privilege and exalted 
trust 

Considering the bar as a body of lawyers 
thus tested and licensed, it may be the more 
readily understood why its influence, from 
the organization of our state to the present 
time, has been so great. 

It cannot be denied that it has impressed 
itself on every page of the history of our 
state. In every lawmaking body, it has been 
a factor, often originating and invariably as- 
sisting in shaping the statutory declarations 



Ixviii 



133 LOUISIANA REPORTS 



of what shall be the law. On every judicial 
bench it furnishes from its ranks an arbiter, 
hearing, considering, and deciding, and thus 
aiding in the upbuilding of the jurisprudence 
so necessary to the construction and success- 
ful operation of the statute law. 

All this takes no notice of the fact that in 
his practice the lawyer has been the counsel- 
or and teacher of the people in their individ- 
ual interests and concerns, as well as the ad- 
viser of all the departments of the govern- 
ment, state and general as well as local. It 
must be so from the very nature of the struc- 
ture of our political system and our social 
fabric, as institutions regulated by law; for 
how can law regulate, unless its application 
and operation be directed by those who un- 
derstand it as a science. 

All is not claimed in this respect for the 
bar as a body of lawyers. There have been 
very many, from the other walks of life, who 
have exerted powerful influence in the con- 
duct of our affairs as a people, but, as this 
political structure, the result of 100 years of 
progressive activity and evolution, towers in 
our presence to-day, we cannot forget that 
its strength and fair proportions could not 
have been attained without the active and 
controlling participation of the membership 
of the Louisiana bar, as legislators, as admin- 
istrative officers, as lawyers and judges, as 
well as citizens. 

In illustration of what we claim for the 
bar, in the foundation and up-building of our 
state, let us particularize. The task that 
confronted the lawyers of this state at the 
opening of the century, which closes this day, 
was one of unusual difficulty. The territory 
comprising the state had been the colonial 
possession, first of France, then of Spain. 
Proconsular government had in turn directed 
the affairs of the French and Spanish sub- 
jects, who, induced by royal grants, or spe- 
cial privileges, or by the hope of wealth, or 
the love of adventure, had settled here and 
formed its population. By charter direction 
the laws and ordinances of France and the 
customs of Paris had been ordained and ap- 
plied during the French occupation. When 
Spanish rule supervened, the laws of Cas- 
tile prescribed regulations for matters of or- 
dinary civil nature, and prescribed the form 
of practice for judicial procedure. Later on 



the strong hand of O'Reilly seemed to have 
swept all else from the system, and to have 
ingrafted the laws of Spain as the law of the 
land. Whether this was the effect of the of- 
ficial action of this self-willed Spanish Gov- 
ernor or not, such was believed to have been 
the result. In the matter of criminal pro- 
cedure — the arrest, accusation, trial and 
punishment for alleged crime — there was 
slight protection for the accused if consti- 
tuted power was intent upon conviction and 
punishment. 

Nothing could be more different than were 
the regulations prescribed by kingly power, 
or its proconsular representatives, for the 
government of the people of Louisiana, as a 
French, or Spanish province, from the Ameri- 
can plan, whose life and spirit were the guar- 
anties of Magna Charta and the common 
law, and the democratic theory of govern- 
ment by the people and for the people. 

After the purchase of the territory by the 
United States, during the administration of 
Mr. Jefferson, the Congress had framed for 
it a territorial government. The legislation 
thus organizing the territory of Orleans had 
vouchsafed to this people the guaranties of 
the English and American Bill of Rights, the 
trial by jury, the immunity from inquisitori- 
al methods of accusation and prosecution, 
exemption from cruel and unusual punish- 
ments, etc. 

In the domain of federal jurisdiction and 
control these guaranties of the Great Char- 
ter, embodied in the Constitution, had al- 
ready become the heritage of the people, and 
the territorial federal courts were the pres- 
ent and effective agencies for their applica- 
tion and enforcement. 

In aid of the plan of transforming this 
king-governed territory into a state of the 
American Union its Legislature, elected by 
its people, had caused to be framed the Civil 
Code of 1808, modeled, for the great part, on 
the Napoleon Code, and purporting to be a 
compilation of laws in force in the territory, 
with alterations to suit the conditions arising 
from the change of government, but it left in 
force all laws, except so far as they might 
conflict with its provisions. With the set- 
tlement of questions arising under this state 
of affairs the ultimate determination was 
left to the Superior Court of the territory 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixix 



presided over by George Mathews, of Geor- 
gia, Joshua Lewis, of Kentucky, and Fran- 
cois-Xavier Martin, of North Carolina, ap- 
pointed, respectively, by Presidents Jefferson 
and Madison, and their work is to be found 
in the first and second volumes of Martin's 
Reports. 

Later on came the enabling act of Congress, 
authorizing the people of the territory of 
Orleans to frame a state Constitution, pre- 
paratory to their admission as a state. In 
the convention, elected by the people for 
this purpose, the Constitution of 1812 was 
framed, and, after submission, was approved 
by Congress, which enacted the legislation 
admitting the territory into the Federal 
Union, as the state of Louisiana. 

In the framing of this Constitution the 
lawyers of that period, exercised a control- 
ling influence. Their task seems to have had 
less of difficulty than that falling to their 
successors in 1845, 1852, 1879, and 1898, per- 
haps because there was then less distrust of 
the agencies of the government, particularly 
the legislative branch, and doubtless because 
there were then no distracting issues of state 
policy, such as have grown up, necessarily, 
with the marvelous developments of later 
times. 

Fresh in the minds of the framers of this, 
our first Constitution, were the discussions 
as to the outlines and checks of organic law 
requisite for the formation of a more perfect 
union, in the Convention of 1787, and in the 
battle royal waged at the hustings and in the 
several state conventions, over the issue of 
the adoption of the federal Constitution. 

The result was that the state Constitution, 
projected on the plan of the federal instru- 
ment, with its seven articles and schedule, 
was readily adopted as the framework upon 
which the three co-ordinate departments of 
the new state government were to find their 
rock-bed basis. 

It is a tribute to the wisdom of this plan 
of our fathers that the state government was 
easily organized, its completion being signal- 
ized by the organization of the Supreme 
Court, one century ago to-day, and that it 
operated for 33 years, or nearly one-half as 
long as the combined lives of the six succes- 
sive Constitutions that have since been 
adopted. 



For 12 years, the Supreme and inferior 
courts of the state, and the lawyers of that 
period, were called to deal with issues arising 
from the variant systems of laws which 
have been referred to. 

In 1825 a Revision of the Code of 1808, un- 
der legislative authority, was prepared and 
presented by those eminent lawyers, Moreau- 
Lislet, Pierre Derbigny, and Edward Living- 
ston. It was adopted by the Legislature, 
and became the law. 

Soon after, the General Assembly, express- 
ing the weariness of the people from the 
operation of laws existing in the colonial 
days, which brought conflict and uncertainty, 
undertook to cut the Gordian knot of difficul- 
ty, resulting from prior conflicting laws, not 
abrogated by the Code of 1825, by the repeal 
of all laws in force anterior to its provisions. 

Then came to Louisiana lawyers cases of 
rights acquired, or liability incurred, under 
laws existing prior to 1825, and on their 
hearing the Supreme Court held that it was 
not the legislative intent to abrogate those 
principles, which were founded on the Roman 
law and the civil law of France and Spain, 
under which legal rights, recognized by the 
jurisprudence, had been acquired. 

It was the jurisprudence thus formed and 
announced that breathed into the provisions 
of our Civil Code, itself framed on the model 
of the Napoleon Code, the life and spirit of 
the civil law, and opened up, as sources for 
its explanation and elucidation, the jurispru- 
dence of France and the commentaries of her 
jurisconsults, as well as the wealth of the 
Roman law and its exposition wherever it 
had prevailed. 

It is to controversies, growing out of con- 
flicting laws and regulations imposed upon 
the people and property of Louisiana when, 
in its chrysalis form, its territory was the 
pawn and sport of kings, passing from one 
domination to another, until it found its safe 
moorings, as a state of the American Union, 
beneath the aegis of the Constitution, that we 
turn, for the most splendid triumphs of the 
Louisiana lawyer, and to the golden age of 
judicial achievement. It was in controver- 
sies thus arising that the intellect and indus- 
try of the Louisiana advocate met the foeman 
worthy of his steel, in his opposing profes- 
sional brother, and that from their forensic 



Ixx 



133 LOUISIANA REPORTS 



discussions, just as tlie electric spark leaps 
from the contact of opposing currents, the 
truth came, fixing the principle and its ap- 
plication in the judicial pronouncements that 
gave to the bar and to the Supreme Court of 
Louisiana the highest respect and position 
throughout the world. 

There were very many questions of law 
arising in that period from the peculiar con- 
ditions then existing. Questions arising from 
land grants, questions as to batture and ri- 
parian rights growing out of title, or posses- 
sion, of lands bordering our great river, 
enlisted the skill and learning of our greatest 
lawyers, and resulted in the announcement 
of fixed rules, by the Supreme Court, to gov- 
ern all such cases. 

But it was in controversies where the laws 
of different countries were to be considered 
and applied that the genius and learning of 
the Louisiana bar and the wisdom of our Su- 
preme Court signalized and recorded their 
greatest and most far-reaching achievements. 

Cases of this nature, in variant forms, 
brought under consideration the operation of 
the lex domicilii, the lex loci contractus, the 
lex rei sitae, the lex fori, and from them rules 
regulating what was then called the conflict 
of laws, but now known as the science of 
private international law, were simplified, 
and became well-recognized rules of personal 
privilege and property right. 

Cases decided along those lines in the Su- 
preme Court of Louisiana were cited and 
accepted as authoritative by the Supreme 
Court of the United States, and these set- 
tled rules were embodied in Mr. Justice Sto- 
ry's treatise on the Conflict of Laws, the 
pioneer work on this subject in the United 
States, and have held their position, as con- 
trolling precedents, in succeeding jurispru- 
dence, and in all of the works upon this once 
perplexing subject. 

Martin, Porter, and Mathews, and their 
successors upon this bench, great as they 
were, would have been embarrassed by these 
questions, without the treasures of reason 
and authority and research which were 
brought to their assistance by the bar of that 
time. The lawyers of that day were as the 
voice of "one crying in the wilderness," pre- 
paring the way and making straight the path 
through which was to lead the evangel of a 



consistent and settled jurisprudence in its 
progress, as the measure of justice and right 
for all the people. 

It is not that those lawyers, or those judg- 
es, were greater intellectually, or in their 
learning and acquirements, than their illus- 
trious successors at the bar, or on the bench. 
It was theirs to live and serve when those 
great questions arose; it was their oppor- 
tunity and their privilege to live and to act 
at that formative period of our history. 

It is the record of all human annals that 
every crucial occasion has evolved men of 
endowment and courage to meet its issues 
and necessities, and in God's providence it 
fell to the lot of the first judges of this tri- 
bunal, and to the eminent lawyers who then 
occupied the stage of human activity here, to 
confront and to settle the important ques- 
tions which then arose. 

It was thus, when our federal system was 
crumbling undfer the disintegrating influences 
that had proved the inefficiency of the gov- 
ernment, under the Articles of Confederation 
—when Elsworth had resigned, and John Jay, 
his successor, refusing to continue as Chief 
Justice of the Federal Supreme Court, had 
expressed his belief that the system was a 
failure, and that the "one Supreme Court" 
was a tribunal, without power for useful- 
ness — that John Marshall became Chief Jus- 
tice, and soon, under the operation of his 
masterful mind, the government of the Unit- 
ed States began to fulfill and carry into ex- 
ecution the designs of its founders. It was 
to him that opportunity fell to provide, by 
liberal and beneficial construction and in- 
terpretation, for the enforcement of the dele- 
gated powers of the general government, and 
to make them efficient agencies for the gen- 
eral welfare. As has been said by another, 
it was his to take the Constitution, which 
he found "paper," and to transform it into 
"power." It was his to take its skeleton 
framework, and by his plastic hand to clothe 
it with flesh and muscle, to infuse into it 
the rich blood of health, and to breathe into 
its nostrils the breath of life. 

And so it was, when the admiralty juris- 
diction, hedged in by the narrow restrictions 
that confined it to the high seas and to the 
ebb and flow of the ocean tides, had become 
inefficient, that Chief Justice Taney brushed 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxi 



away those restrictions, and by pMlosopMc 
reasoning and luminous interpretation tliat 
carried conviction extended ttiat jurisdiction, 
so necessary to tlie people, as well as to the 
government, to the great lakes and inland 
streams, making "navigable waters" the test, 
instead of the "inland flow of the tides." 

And so, it was the opportunity of the 
great lawyers who composed the bench and 
bar of Louisiana to meet the conditions that 
arose, in the early days of our state, from 
conflicting laws and systems, that had con- 
trolled when she was a Spanish or French 
province, or a territory of the United States, 
and to mold and shape the legislation and 
jurisprudence which should, with safety to 
the privileges and rights of all its people, 
transform them, as a community, into a 
state of the American Union. 

Royal edicts, charter grants, kingly preroga- 
tive, laws of Spain and laws of France, were 
all to be considered, as to their operation 
upon the rights and privileges of the people, 
and were to be reconciled, so as to bring 
them into harmonious relations with the lib- 
eral institutions and beneficent form of gov- 
ernment ordained in the Constitution for the 
regulation of the states composing the Feder- 
al Union. 

That they met these problems and solved 
them in the interest of the state and of all 
her people is the finding of impartial history, 
and is the proudest record of the Louisiana 
bench and bar. 

From this day, looking back to the lawyers 
and judges of that pioneer period in our his- 
tory, the eminence they occupy in the world's 
annals of judicature and politics seems 
crowned with the "lory of a sunlight that 
brightens as the years pass away. 

Tradition has handed down much of in- 
terest regarding these great men as individu- 
als, but my theme does not lead me there, 
but rather confines me to the Louisiana bar 
as exemplified by its record of public serv- 
ice. 

Soon after the admission of the state, the 
Louisiana lawyer came into prominence as 
a political factor. In the state, as through- 
out the Union, alignments had been formed 
between the federalist, or whig idea, on the 
one hand, and the democratic theory, on the 
other. The former favored the latitudinous 



construction of the Constitution, in the en- 
largement of the powers delegated to the gen- 
eral government. The latter stood for the 
strictest interpretation, and denied all power 
beyond the express terms of the mandate. 

The currency, the national bank, the tariff, 
the public domain, and many questions came 
on for discussion; fortunately economic is- 
sues that admitted of peaceful solution. But 
then came burning questions growing out of 
the institution of domestic slavery, intensi- 
fied by the admission of Missouri and Texas 
as states, and later by the issues that arose 
from the Missouri Compromise, by the acts 
for the admission of Kansas and Nebraska — 
the one party demanding that slavery should 
be excluded from the territories, and the 
other claiming the right of the slaveowner 
to settle in the territories, the common prop- 
erty of all the states, with his slave proper- 
ty, subject to expulsion, if the territory, when 
erected into a state, should declare against 
domestic slavery. The decision of the Su- 
preme Court in the Dred Scott Case, deciding 
the Missouri Compromise repugnant to the 
Constitution, and that the colored man was 
not a citizen of the United States in the ju- 
risdictional sense, intensified the issue, and 
added to the flames that burned, until extin- 
guished by the Civil War. 

Events crowded, and the dread issue of 
secession came on ; the Civil War, the defeat 
of the South, the military occupation, the 
chaos that came during the days of alien and 
negro domination, the steady resistance of a 
people who, though conquered in war, refus- 
ed to yield to the rule of an inferior race. 

It is not a grateful nor pleasant task to 
revive those sad memories of the long-ago, 
and I turn from them. I only recall them to 
say that, throughout them all, two genera- 
tions of Louisiana lawyers took active part 
on the one side and on the other in all the 
discussions, as well as in all the events, that 
make up that dark period in our history. 

In all of these troubles the Louisiana law- 
yer was not a laggard. In the closing scenes. 
especially in all the measures of resistance 
to the misrule and oppression that followed 
the Civil War, whether at law or otherwise, 
almost unanimously, whether they had sided 
with the Confederacy, or with the Union, 
they were on the side of the rights of the 



Ixxii 



133 LOUISIANA REPORTS 



state and tlie people, and during tlie last 
10 j'ears of resistance, with many of them as 
leaders, the struggle went on, until, in April, 
1877, when, under the leadership of him who 
was twice the deliverer of this state, him 
who, with maimed limbs and wasted body, 
was twice the Governor of the state, and 
long the Chief Justice of this tribunal, ended 
our enthrallment as a people, and came the 
restoration of our state to her rightful posi- 
tion in the sisterhood of the states of the 
Union. 

Thus far this paper has dealt with the 
Louisiana lawyer in his capacity as a law- 
yer, and in his connection with the political 
activities that have agitated the state. I 
present him now in the literary contributions 
that he has made to its laws, and to its ju- 
risprudence, and generally to the literature 
of the period. 

Francois-Xavier Martin was among the 
early contributors to the literature, both le- 
gal and secular of the state. In North Car- 
olina, where he resided prior to his appoint- 
ment by President Madison as one of the 
judges of the Superior Court of the terri- 
tory, he had been a printer, while practicing 
law. There he had published a revision of 
the laws of that state, a work on Executors, 
another on Sheriffs, Their Powers and Du- 
ties, and a translation of Pothier's work on 
Obligations, from the French into English. 

It may be of interest, to note that Martin 
was a member of the order of Ancient Free 
and Accepted Masons, and that in November, 
1789, at the funeral of Richard Caswell, 
Grand Master of that order in North Caro- 
lina, who had been a general in the War of 
the Revolution, a senator in Congress, and 
a Governor of the state, he delivered the fu- 
neral oration, on behalf of the Grand Lodge 
of that state. This address appears in a work 
published in 1867, entitled Washington and 
his Masonic Compeers. His selection for 
this duty shows the position that he had at- 
tained in his adopted home. It is an address 
suited to the occasion. In it may be detect- 
ed inaccuracies of expression, showing that 
he had not yet mastered the English lan- 
guage. His quotations from Antony's ora- 
tion over the dead body of Caesar attest his 
familiarity with the works of the great Eng- 
lish poet 



With the admission of the state into the 
Union, the Superior Court of the territory 
ceased to exist, and Martin became a mem- 
ber of the Louisiana bar, being admitted to 
practice soon after the organization of the 
Supreme Court, and practiced as a lawyer, 
acting as Attorney General of the new state 
until his appointment to the supreme bench 
in 1815. He edited and published the re- 
ports of the territorial Supreme Court in 
two volumes, and thereafter the 18 volumes 
of the Supreme Court Reports. Meanwhile, 
he had written the history of Louisiana, 
which he published in 1827. This work was 
republished, lq the early 80's by the late 
James A. Gresham, with a memoir of Judge 
Martin, by Wm. Wirt-Howe, once a justice 
of this court — a monograph rich in its treas- 
ures of historical research, and a most val- 
uable contribution to the literature of the 
law of our state. As a historian. Judge Mar- 
tin's purpose seemed to be to record events 
as they transpired, with little in the way of 
deduction or comment. Dr. Monette, in his 
History of the Valley of the Mississippi, while 
quoting liberally from Martin, states that 
there was some confusion of dates, and in 
this respect inaccuracies in parts of Martin's 
History. 

In 1817, Marseilles, the place of his birth, 
hearing of the achievements and honors of 
her illustrious son, elected him a member of 
her Academy, and, in 1841, Harvard, the 
leading college of his adopted country, con- 
ferred upon him the degree of Doctor of 
Laws. 

Though not in the order of time, it may be 
appropriate here to state that another mem- 
ber of the Louisiana bar condensed the 20 
volumes of reports published by Martin in- 
to 10 volumes, abridging the less important, 
and reproducing in full the more important 
opinions of the court, so that nothing was 
lost, adding an analytical digest of the 20 
volumes of excellent arrangement and ac- 
curacy. The author was Thomas Gibbes 
Morgan, of Baton Rouge, La., a gentleman of 
rare accomplishments, and of the highest 
rank as a citizen and lawyer. 

The first general work of this nature was 
a digest, in two volumes, by Moreau-Lislet, 
of all general legislation from 1804 to 1828, 
to which he appended the Treaty with 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxiii 



France, of April 30, 1803, by which Louisi- 
ana was acquired ; also the Constitution of 
the United States, and the Enabling Act of 
Congress of February, 1811, under which the 
territory was authorized to adopt a state 
Constitution, preparatory to its admission as 
a state; the Constitution adopted on Janu- 
ary 22, 1912; the ac£ of Congress of April 8, 
1912; and the supplementary act of April 
14, 1812, by which the state was admitted 
into the Union — so that the heterogeneous 
and cosmopolitan people of the state, wheth- 
er American, French, or Spanish, should have 
perfect knowledge of all the pertinent facts 
by which Louisiana had become one of the 
states of the United States, the organic laws, 
federal and state, which were to govern, and 
the definite territorial limits within which 
these laws, and all the sovereign functions of 
the new state, were to operate as the suc- 
cessor of the proconsular governments, alter- 
nately, of France and Spain, and the terri- 
torial government by the United States, sub- 
sequent to the date of the purchase in 1803. 

Thirteen years later, the revision of the 
statutes, from the change of government to 
1841, inclusive, was made and published by 
the collaboration of Henry A. Bullard, a Jus- 
tice of the Supreme Court, and Thomas Cur- 
ry, Judge of the Ninth Judicial District, who 
found time, amid their judicial labors, to do 
this work. 

Eleven years later came the revision of the 
statutes by those eminent lawyers Levi 
Pearce, William W. King, and Miles Tay- 
lor, in 1852, and in 1856 this was followed by 
the compilation, edited and published by U. 
B. Philips, of West Feliciana, a lawyer of 
much ability and learning. 

The next revision came in 1870, of the 
Code of Practice, Civil Code, and Statutes, 
made necessary by the changes which had 
been superinduced by the Civil War, edited 
by that eminent lawyer, John Ray, and for- 
mally adopted by the General Assembly. 

Although 43 years have passed, we are 
without subsequent authoritative digest or 
revision of our Codes or Statutes. Not that 
the lawyers of our state have been unmindful 
or neglectful, for we have had, since, repeat- 
ed editions of Codes and Statutes, and digests 
by many of them ; the first, by Albert Voor- 



hies, twice District Judge, once Associate 
Justice of the Supreme Court, and Lieutenant 
Governor of the state ; then, the Revised Laws 
of Louisiana, by Solomon Wolff, following 
the Revision of 1870, with amendments up to 
1910, and references to all the construing 
jurisprudence, a work of transcendent merit, 
and of indispensable utility to the bench and 
bar, as well as to the layman. Another work, 
worthy of notice, is the Index to the Statutes 
of Louisiana, from the beginning, up to the 
date of its first publication, by Robert Hard- 
in Marr, Jr., a work of the greatest utility 
to the profession, followed by a second edi- 
tion, which brings the index up to 1912. 
This author has also given us a work on the 
Criminal Jurisprudence of Louisiana, which 
lightens the labor of judge and lawyer, and 
is received as authority everywhere — the 
same author, whose name, as a member of 
the Commission to frame a Code of Criminal 
Procedure, gives earnest that the issuance 
of that work, now in embryo, will not be 
long delayed. 

Another illustration of the labors of the 
Louisiana lawyer along these lines is found 
in the project for the revision of our Civil 
Code by those accomplished lawyers, R. E. 
Milling, W. O. Hart and Judge W. N. Potts, 
which changes the original text to conform 
to the jurisprudence, and to present condi- 
tions, as to many provisions of that Code. 

An edition of the Code of Practice of 1828, 
published by M. Greiner in 1844, with lumin- 
ous references to the jurisprudence and stat- 
utory amendments up to that date, was the 
vade mecum of all the lawyers of 50 years 
ago. 

The edition of the same Code, annotated, 
published by Henry L. Garland, and the re- 
vised edition of this work by Solomon Wolff, 
which brings the statutory amendments and 
references up to 1910, are works of the high- 
est value. 

Other editions of the Civil Code, anno- 
tated by Upton and N. R. Jennings in 183S. 
by the late James O. Fuqua and Thomas 
Gibbes Morgan, in English and French, later 
on by Judge Eugene D. Saunders, in the SO's 
and more recently by E. T. Merrick, Jr.. with 
notes of his father, the late Chief Justice 
Merrick, whose name the author bears — the 



Ixxiv 



133 LOUISIANA REPORTS 



last edition bringing the references np to 
1912 — all of great value, have been publish- 
ed, attesting the labors of Louisiana law- 
yers in the interest of the state and people. 
Another edition of the Code annotated was 
by the late K. A. Cross, edited by Theo. 
Roehl, Esq. 

These digests and revisions, with annota- 
tions to date, were all based upon the origi- 
nal Civil Code, which was the labor of Lou- 
isiana lawyers in preparing a Code for the 
new American state, for the most part taken 
from the Napoleon Code, and bearing the 
same relation to it that the French jurists 
selected by Napoleon bore to the Napoleon 
Code, and that Tribonian and his colleagues 
bore to the Justinian Code. 

The Supreme judicial interpretation of the 
laws gave the jurisprudence, and became 
part of the law. Reports, annually issuing, 
accumulated, and necessitated accurate di- 
gests, analytically arranged, and to this need 
the Louisiana lawyer gave response in the di- 
gests of the decisions of the Supreme Court : 
First by Deslix ; then by Benjamin and Sli- 
dell; then by W. D. Hennen in his two edi- 
tions; by Charles Louque; by S. R. & C. L. 
Walker; by Mr. Taylor; and by the present 
Chief Justice, Jos. A. Breaux. 

The Reports of the Decisions of the Court 
of Appeal by Judge Frank McGloin, and those 
of the reorganized court, as now existing, 
are worthy of notice as valuable contribu- 
tions to the literature of the law of our state. 

Works of the character noticed — that is, 
the revisions and annotations of the writ- 
ten law, or the proper analysis and digesting 
of judicial opinions — involve, necessarily, in- 
cessant labor, industry, research, and dis- 
crimination, as well as learning, and they 
all stand as enduring monuments to the pub- 
lic service rendered by the lawyers of the 
period under review. 

In 1847 Henry M. SpofCord, afterwards a 
Justice of the Supreme Court, in collabora- 
tion with District Judge E. R. Olcott, pre- 
pared and published The Louisiana Mag- 
istrate. It was intended for the use of jus- 
tices of the peace, clerks of court, notaries, 
and sheriffs, giving their powers and duties, 
and whence derived, as well as models and 
forms for their official acts. It was a work 
of signal merit, so plain in its terms that 



the veriest Dogberry, called to the judgment 
seat in the important work of arrest and 
commitment for crime, or the trial and judg- 
ment and appeal in matters of civil interest 
involving less in value than $100, could have 
no excuse for error in his procedure, no mat- 
ter how wide of the mark the arrows of his 
judgment might fly. A revised edition of this 
work was published in 1870 by J. A. Seghers 
and Patrice Leonard, members of our bar. 

The survivors of the bar of that day, es- 
pecially those who practiced in the country 
parishes, will yield the palm to the accom- 
plished and polished Spofford for this incom- 
parable work, which the brilliancy of his sub< 
sequent career as a Justice of the Supreme 
Court and in the domain of politics did not 
obscure or cause them to forget. The Civ- 
il Law of Spain and Mexico, by Gustavus 
Schmidt, in 1850, commends itself to all civil 
law lawyers, who have interest in tracing, to 
their source, many provisions of our Code. 
It is a work worthy of remembrance. 

The work on Citizenship published by an- 
other Louisiana lawyer, Alexander Porter 
Morse, my classmate in the Louisiana Uni- 
versity, is one evincing learning and ability 
of the highest order, painstaking research, 
and fine discrimination. He was the counsel 
of the Republic of France in the 80's, before 
the Franco-American Claims Commission. 

We may, at least, claim a share in the dis- 
tinction achieved by Judah P. Benjamin, 
whose high character as a lawyer was fixed 
here, and who went hence to his brilliant 
career as a United States Senator, then as 
cabinet officer to the Confederate President, 
and, after the defeat, as a British lawyer, 
and to his final preferment as Queen's Coun- 
selor. His work on Sales is authority every- 
where. 

The industry and ability of the late Kim- 
ball A. Cross, also my college mate, remain 
to us in his treatise on the Louisiana Law of 
Pleadings and of Successions. 

Another contribution was a work on Taxa- 
tion, a vexed and vexing question, which for 
30 years past, like Banquo's ghost, has re- 
fused to down at our bidding, and even at 
this day returns to plague the lawyers and 
their hapless clients, as well as the judges. 
Of this work, Eugene D. Saunders, lately 
Dean of the Law Department of the Tulane 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxv 



University of Louisiana, and sometime Unit- 
ed States District Judge, was ttie author. 

Other works which may be named are, one 
by M. M. Cohen, on the Admiralty, another, 
by Judge J. E. Leonard, upon Federal Prac- 
tice and Procedure, and an Analytical Digest 
of Tort Cases in Lpuisiana, published last 
year, supplementing the "analytical index of 
personal injury cases" issued in 1900 by H. 
H. White, of the Alexandria bar — all works 
of merit and worthy of notice. 

Another instance of the labors of a Lou- 
isiana lawyer is worthy of mention before 
this tribunal, where he sat as an Associate 
Justice. I allude to the late Robert Hardin 
Marr. He found time, amid the cares of an 
active and extensive practice, to translate 
from the French into the English, with his 
own comments, notes, and references appro- 
priate to our state, the commentaries of Mar- 
cade. 

Marr was a Tennessean, and had achieved 
rank and position there, in the 40's, when he 
was attracted by the wider field of activity 
in this city, and located here. By his ap- 
plication he acquired the perfect knowledge 
of the French language, translating, writing, 
and speaking it with accuracy. Realizing the 
importance of the knowledge of this lan- 
guage, the mother tongue of a great part of 
our people, he knew that in it were treasured 
the judicial pronouncements and the com- 
mentaries of the jurists whose works have 
made France immortal. He had no need of 
translations, but it was his desire to con- 
tribute to his brothers of the bar who might 
not have equal advantages the works of 
those jurists, just as translations into the 
English of the works of Domat and Pothier 
from the French, and of the Justinian Code 
and the Institutes from the Latin, had plac- 
ed those treasures of the civil law within 
the reach of all English-speaking students 
and lawyers. He had completed his work, 
and it was ready for publication, when the 
Civil War came on, and he left, obedient to 
the call of duty. During the occupation by 
the federal troops and his enforced absence, 
this literary treasure was lost. I have heard 
from his own lips the story of the laborious 
care spent in its preparation, and his sorrow 
that the profession should, by its destruction. 



be deprived of the benefits which it was his 
sole purpose to confer. 

For himself, this tribune of the people, in 
their after days of sore affliction, frail and 
delicate physically, but intellectually and 
morally strong, this lost work was not need- 
ed to commemorate him as a lawyer, or as 
a man. 

In this review of the Louisiana lawyer, 
as he is to be judged by the literary evi- 
dences of his labor, I beg to present one 
other — Bernard J. Sage, in his work. The 
Republic of Republics, issued from London, 
England, in 1865, its third edition appearing 
in 1878, a volume of 450 pages, with an ap- 
pendix of "much apposite matter, now out 
of print, but instructive and valuable." Mr. 
Sage was one of the counsel selected for the 
defense of Jefferson Davis, late President of 
the Confederate States, then held a political 
prisoner, on the charge of treason, with 
Charles O'Connor, of New York, as leading 
counsel. By understanding, Mr. Sage went 
to London, and there, incognito, this argu- 
mentative review of the federal Constitution 
was prepared, purporting to be the "Mono- 
graph of P. C. Centz, Barrister," a fictitious 
name. This method of issuance was adopted 
because of the fierce sectional prejudice ex- 
isting at that time, and the fear that an ap- 
peal to law or to reason, from any southern 
or democratic source, would not be consid- 
ered. In this disguise it was sent to the 
President of the United States, to the Press, 
and to many leading citizens, and passed 
current, at the time, as the work of an 
English lawyer. Its first form was that of 
a protest against the trial of Jefferson Davis 
by a military commission. Its burden was to 
show that an act of a citizen of any one of 
the United States, done in obedience to the 
call of his state, which had withdrawn from 
the Union, whether rightfully or wrongfully, 
could not constitute treason against the Unit- 
ed States government, which represented 
only those states remaining in the Union, 
and therefore that Mr. Davis could not be 
successfully tried for treason vndev the Con- 
stitution of the United State's. It was read 
by the then President, An'•'i•t^^v Johnson, and 
pronounced by him "his^^orioally and logical- 
ly correct." It is asi^-^i'ted and believed that 



Ixxvi 



LOUISIANA REPORTS 



this unanswerable argument of Mr. Sage ap- 
pealed to the great lawyers and statesmen, 
then advisory to the federal government, and 
that, under their advice, the issue of treason, 
vel non, of Mr. Davis was allowed to drag, 
without determination, until the general am- 
nesty proclamation of the President, in 1868, 
ended the matter. 

This contention, based upon a compilation 
of all that had been written, or stated, in 
the formation of the general government, as 
the general agency of the sovereign states, 
operating its authority directly upon the peo- 
ple, only within the limits of its delegated 
powers, was not new, but it came in a form, 
that attracted attention from the men in 
power, at a crucial period, when the issue 
could no longer be evaded. It may have 
contributed to save the Constitution from 
further breach, and to leave untouched the 
principle upon which rest the sovereign 
rights of every state of the Union. 

As long as respect for this system shall 
endure, the name of this Louisiana lawyer 
will be honored, as one of those who labored 
successfully in his day for the supreme bene- 
fit, not only of his own state, but of every 
state of the Union. He died poor, at 82 
years of age, in September, 1902, and his 
remains rest in hallowed ground, in the 
Mcholls tomb at Thibodeax. 

His fitting monument is this work. 

It should be a text-book in every institu- 
tion where constitutional law is taught. 

There is nothing in it to indicate that Mr. 
Sage was its author, but I know from him- 
self that this work was his own. I have, as 
a treasured souvenir of our friendship, a 
copy which he gave me in December, 1887, 
with my name and his inscribed by his own 
hand. 

One other instance, where the professional 
labors of the Louisiana lawyer resulted in 
the settlement of a constitutional question of 
interest to the state and to the people de- 
serves mention here. It grew out of the 
prosecution and trial, before the United 
States Circuit Court, in this city, of a num- 
ber of persons who had participated in the 
riot of April, 1813, at Colfax, in Grant par- 
ish, charged with crime committed on ac- 
count of the race an<i color of the victims. 
After conviction by thb ^ury, on certain of 



the counts, a motion in arrest was interpos- 
ed, raising the question whether the prohibi- 
tions of the fourteenth amendment were op- 
erative directly upon the people as individu- 
als, or only as an additional limitation to 
the power of the state. At the argument the 
Circuit Judge, the late W. B. Woods, and 
the Associate Justice of the Supreme Court, 
Mr. Justice Bradley, differed in opinion, and 
certified the question to the Supreme Court, 
which sustained the motion in arrest. I had 
the honor to participate in the conference 
at which this motion in arrest was drawn. 
This settlement ended prosecutions of that 
kind before the federal tribunals, and was a 
boon to the people of the Southern States, 
who were struggling to free their states 
and themselves from the rule of an inferior 
race. 

Robert H. Marr, Sr., Judge William R. 
Whitaker, and E. John Ellis, for 10 years 
member of Cangress from this state, all of 
whom have passed away, were the counsel 
who raised and argued that question. 

No sketch of the work of our lawyers in 
the line of the literature of the law would 
be complete without reference to the work 
of Mr. Henry Denis on the Contract of 
Pledge, published in 1898, wherein he treats 
of the pledge at common and at civil law. 
This work is a distinct addition to the sum 
of legal knowledge. For years Mr. Denis 
was Reporter of the decisions of this court, 
and also Professor of Civil Law in our Uni- 
versity. 

Outside of the literature of the law, the 
lawyers of the period under review have 
made valuable contributions to the general 
literature. 

Charles Gayarre, a lawyer and judge, Fed- 
eral Senator, Assistant Attorney General, and 
for years Secretary of State, was the author 
of the History of Louisiana as a state, as a 
Territory, and of the Romance of that His- 
tory, also of the Life of Philip Second of 
Spain, and other publications. 

A little work, but worthy of mention for its 
merit, is Grandmother's Tales of the Aca- 
dians — that heroic and devoted people who, 
true to their religion and to the land of their 
origin, when driven by merciless oppression 
from their homes in Acadie, now Nova Scotia, 
found their way to Louisiana, where floated 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxvii 



the banner of La Belle France, with its spot- 
less lilies, and where her rich language was 
spoken, cast their humble lot in that dream- 
land along the silvery Teche, destined to give 
to the state of their adoption some of its 
most distinguished citizens, in peace and in 
war, came to us almost as a lullaby of our 
childhood, from the t)en of Judge Felix Voor- 
hies, my classmate, and still an honored 
member of the bar. Alas, that it should shat- 
ter some of the idols that the genius of Long- 
fellow, in his matchless Evangeline, had cre- 
ated. Alas, that grandmother's traditions 
have written down Gabriel as false and faith- 
less. Alas, that sweet spirited Evangeline, 
broken-hearted and bereft of reason, rests, 
after life's fitful dream, in the cemetery of 
beautiful Lafayette. "Correspondence with 
My Son at Princeton," published in 1858, by 
James H. Muse, after the tragic death of his 
son, on the ill-fated steamer "Col. Grossman," 
may here be mentioned. Mr. Muse was a dis- 
tinguished lawyer, and as a legislator was 
the author of the statute abolishing impris- 
onment for debt in this state. 

And how upon us steals the sad dreamy 
poesy of the brilliant Richard Henry Wilde. 
Mr. Wilde had been Attorney General of 
Georgia, and for eight years a member of 
Congress from, that state. He became a mem- 
ber of the Louisiana bar in the 40's and was 
professor of Constitutional Law in our Uni- 
versity. His monograph on Dante, the Ital- 
ian poet, and on Torquato Tasso, survive him. 
But it is his poetry that has preserved his 
name and memory. Colonel William H. 
Sparks, in his Recollections of Fifty Years, 
a work of rare merit, published in 1870, that 
perpetuates so much of interest regarding the 
lawyers and public men of the early days of 
our history as a state, thus quotes S. S. Pren- 
tiss, the great orator, a member of the Loui- 
siana bar: Repeating Wilde's verse: 

"My life is like the prints which feet 
Have left on Tampa's desert strand. 
Soon as the rising tide shall beat, 
All trace will vanish from the sand. 
Yet, as if grieving to efface 
All vestige of the human race. 
On that lone shore, loud moans the sea, 
But none, alas, shall mourn for me," 

Prentiss said: 

"Why did not Wilde give his life to liter- 
ature, instead of the musty maxims of the law? 



Little as he has written, it is enough to pre- 
serve his fame as a true poet. He was distin- 
guished as a lawyer, and as a Congressman, 
but his name and fame will only be perpetuated 
by his verse, so tender, so true to the feelings 
of the heart. It is the heart which forms and 
fashions the romance of life, and without this 
romance, life is scarcely worth the living." 

Doubtless there are other literary works of 
the members of the bar that have escaped 
this notice. 

If to this record of extrajudicial and extra- 
official legal effort be added the opinions of 
the judges, reported from the first of Martin 
to the current volume, the innumerable briefs 
of the lawyers engaged, filed with every sub- 
mitted case, and frequently perpetuated by 
the reporters, the vast proportions of the la- 
bors of the lawyers of this state, in the great 
work of forming and shaping her institutions, 
and policy, and jurisprudence, will appear. 

It must not be supposed that all that has 
been said of matters where lawyers have been 
controlling factors in molding the jurispru- 
dence, or in shaping the policy of the state, 
or wherever they have impressed their in- 
fluence upon conditions affecting the people, 
was the result of combination, or organiza- 
tion, upon their part. It was all the result 
of unorganized, individual effort, in the prac- 
tice of the profession, or in the ordinary 
walks of life. 

It is only of recent years that bar associ- 
ations have become factors for the greater 
benefit of the profession and of the people. 
The American Bar Association, and the asso- 
ciations in the States, strengthening and sup- 
porting its recommendations, have become 
potential factors for the general good. Of 
the former, more than 130 Louisiana lawyers 
are members, and many of them are also 
members of the State Bar Association. 

First of all, its influence has brought higher 
standards of qualification for admission to 
the bar. The requirement of liberal general 
education, with longer terms of study and in- 
struction in the law, is one feature. The 
adoption of a code of ethics, inculcating mo- 
rality, gentility, fairness, and integTity in the 
professional life and practice of the lawyer, 
with the suggestion that it be taught to the 
student as a distinctive branch, is another 
and all-important one. 

Another is found in the effort to bring 



Ixxviii 



133 LOUISIANA REPORTS 



about uniformity in the laws of tlie several 
states of the Union in matters of commercial 
regulations, such as negotiable instruments, 
bills of lading, and many other subjects, that 
concern the general interests of the people. 
Our own statutes, of recent enactment, on 
the two subjects last mentioned are results 
brought about by the bar for the general 
welfare. 

Success has also crowned their efforts in 
the recent law regulating the practice before 
the courts by which unnecessary and waste- 
ful delays in bringing cases at law to their 
determination will be, to a great extent, 
avoided. 

The limits of this paper will not admit of 
further detail. The Louisiana Bar Asso- 
ciation is on the threshold of its activities 
and usefulness. Its motives are disinterest- 
ed; its purposes look to the general wel- 
fare; its desire is to place the laws of the 
state and the administration of justice on a 
footing to keep pace with the requirements of 
this age, in all matters where this can be 
done consistently with the unchanging rules 
of justice and right. 

One other observation. I would be recre- 
ant to my duty as a judge if I should fail to 
declare, in this presence, the assistance that 
the Bar Association has always rendered to 
the courts. The amicus curiae, as we have 
known him, has generally been some member 
of the bar, representing interests identical 
with those of one or the other side of the con- 
troversy on trial, but not of counsel. For 
this interest, which he may be employed to 
serve, he appears on the brief, ostensibly as 
amicus curiae. That the assistance to the 
court is generally valuable there can be lit- 
tle doubt, but with experienced judges the ap- 
pearance may bring some such measure of 
distrust as in the olden days attached to the 
Greeks when they came bearing gifts, and the 
effort of this "friend of the court," perhaps 
is received and considered as that of counsel 
regularly employed. Doubtless in every such 
case the motives of counsel have been hon- 
orable and praiseworthy but generally the 
appearance has been that of the interested at- 
torney. 

It is not so with the Bar Association, when 
called upon by the judges. In two instances 
of serious importance the Civil District Court 



has had occasion to take measures: First, in 
the matter of a statute requiring their ac- 
tion in the readjustment of certain official 
salaries payable out of the judicial expense 
fund; second, as to the proceedings to be 
had in the adjudication and security to be 
given by the adjudicatee in the matter of 
the Fiscal Agency for the keeping of the 
large funds that come into the registry of the 
court. Those were questions of serious pub- 
lic importance. Doubts as to the constitu- 
tionality of the first of these led the judges 
to request the assistance of the Bar Associa- 
tion, and forthwith there came three of its 
members each one of whom had been its pres- 
ident. They gave to us, freely and without 
stint, the results of their painstaking re- 
search, and the force of their reasoning, in 
argument, and led us, as we believe, to a safe 
and wise determination, from which no ap- 
peal was taken. 

In the seco.nd instance, the president of 
the association, here to-day, leading in these 
ceremonies, came at our request, and gave 
the result of his thorough research and ex- 
amination, bringing a solution, to the sat- 
isfaction of all concerned, which will stand 
as a precedent in this most important duty 
of safeguarding the public interest, in the 
selection of the Fiscal Agent Bank, and the 
form of security to be given. 

It is a pleasure, as well as a duty, to ac- 
knowledge, in this presence, these disinter- 
ested and meritorious services. 

Representing the period closing this day, 
four generations of lawyers appear. They 
embrace those who participated in the or- 
ganization of Louisiana as a state, and in 
the forensic contests that framed our early 
jurisprudence, and they include the rising 
generation of lawyers, just admitted to the 
bar, who give so much promise of useful- 
ness. 

Among them appear a number who have 
served as Governors of our state, many who 
have represented the people in the two hous- 
es of the federal Congress, two, at least, 
who have been cabinet officers, two who were 
ambassadors to the Court of France, two 
others to the Republic of Mexico, one who 
was ambassador to the Russian Court, and 
another to the Court of Spain. Still anoth- 
er was the special minister and envoy of the 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxix 



government of the Confederate States to the 
European powers during the Civil War. One 
of them, who served for years as a state 
district judge, and as a member of the Con- 
stitutional Convention of 1879, was appoint- 
ed judge of the federal Circuit Court, and 
afterwards was promoted to the Circuit 
Court of Appeals for this circuit, and is now 
the president of that tribunal, a position 
second only to that of Justice of the fed- 
eral Supreme Court. He is with us to-day, 
sitting as an invited guest of the Justices 
of this court. Another, who became a mem- 
ber of our bar, was for some years an As- 
sociate Justice of the Supreme Court of the 
United States. Still another, a native of 
Louisiana, once a Justice of this court, aft- 
erwards a senator in the federal Congress, 
later became an Associate Justice, and is 
now the Chief Justice of the Supreme Court 
of the United States. 

Three of them have been presidents of the 
American Bar Association — the first, in his 
day, the acknowledged leader of the bar, a 
senator in the Confederate Congress, once 
Attorney General of the state, genial and 
high-spirited, whose gentle and engaging man- 
ners, aside from his transcendent abilities, 
bound him, as with hooks of steel, to our af- 
fections. 

Another, who came with an invading army, 
and after the Civil War located here, soon 
won our admiration and esteem by his per- 
sonal qualities and high accomplishments, 
and especially as a Justice of the Supreme 
Court in 1872, when he refused to take part 
in the conspiracy that placed our state un- 
der a usurpatory government — the fabrica- 
tion of an Infamous election returning board 
— and resigned his high office, who, like Pi- 
late, seeing that his opposition could "pre- 
vail nothing," "took water and washed his 
hands," refusing to be a party to the sub- 
jugation and wrongs of a brave and liberty- 
loving people. 

The third Is with us — and long may he re- 
maln^ — the unquestioned leader of our bar, 
in whose matchless abilities, civic virtues, 
and public spirit, as a citizen, we take pride, 
as we hall him our colleague and friend. 

Another public service rendered by the 
lawyers of this period is that since the 
foundation of the law department of our 



University its professors, with few excep- 
tions of late years, were members of the 
bench and bar of this state. 

In the Civil War almost all of our law- 
yers of the arms-bearing age took military 
service — many as private soldiers, a number 
who attained the rank of brigadier or ma- 
jor general, many more who became field of- 
ficers, or commanders of batteries. Many of 
them lost their lives; many received griev- 
ous wounds. Shining examples of the vol- 
unteer soldiery of those fateful days are be- 
fore us to-day In the persons of three of the 
Justices of this court, and two of their in- 
vited guests of the federal courts, presiding 
with them. 

Some followed the flag of the Union, and 
many more, the banner of the South. 

Time has sped away, and 50 years separate 
us from those eventful days. Through their 
gathering mists and shadows, the young and 
dashing soldier has disappeared, and with 
him have gone the antagonisms and bitter- 
ness of that unhappy period, as well as the 
issues that called him to the tented field. 

Those of us who survive, as veterans of 
that civic strife, are no longer enemies. We 
are comrades and friends — citizens of one 
common country. 

We have learned to respect each other's 
feelings and motives; our children have in- 
termarried, and our Interests have become 
identified. Without excuse, or apology, for 
what has been In the past, without revival 
or discussion of Issues that have been settled, 
we all are content that the stars, which 
gleamed In the blue cross banner of the 
South now shine resplendent in the spangled 
flag of the Union, the representatives of free, 
peaceful, and coequal states. 

That restoration has been complete was 
proven in the recent war with Spain, when 
the youth of the South rallied, en masse, to 
the standard of the Union, among them some 
who are now among the leading lawyers of 
this state. 

Cursory and incomplete, this review of the 
Louisiana bar, In its relation to the juris- 
prudence, to the literature, to the general 
affairs of the state, and to the political 
events of the last 100 years, has ended. If 
time would admit of personal notice of many 
of Its members, the recital of their high 



Ixxx 



133 LOUISIANA REPORTS 



qualities as men, their abilities and accom- 
plishments, would be full of interest. 

And now we ring down the curtain upon 
the first century of Louisiana lawyers. 

As they pass us in review, memory recalls 
so many noble spirits, the friends of our 
earlier days and manhood, the loving, the 
brave, the learned, the eloquent, the bril- 
liant, the refined, the devoted, the true! 

We strew sweet flowers of affection upon 
the bier of each one who has passed to the 
Eternal Beyond, and drop the sympathetic 
tear as we proudly and confidently give them 
to the judgment of history, which, with stern 
justice, shall pass upon the quick and the 
dead. And on this day we register our faith 
that, in that Grand Assize, when the sum- 
ming up shall give the "whole truth, and 
nothing but the truth," and when there shall 
be no error of judgment, the lawyers compos- 
ing the Louisiana bar of the past 100 years 
will stand with those who have served well 
in their day and generation — amo^ng those 
"good and faithful servants," to whom shall 
be given the glad plaudit, "Well done." 



The Centennial Year. 

By Joseph A. Breauou, Chief Justice. 

Thoughts regarding the early judicial his- 
tory of the state suggest themselves on this 
occasion, after having heard the eloquent ad- 
dresses made in the presence of this distin- 
guished audience. 

In the early part of the century just pass- 
ed, Louisiana was fortunate in having able 
jurists on the bench and at the bar. Juris- 
prudence at first was in an incongruous con- 
dition even after the state had passed under 
the dominion of the United States. She ob- 
served a set of civil-law rules strangely com- 
pounded of the English Case Law, French 
Code Law, and Spanish Usages. Each cit- 
izen, doubtless, favored the system of laws 
of the country in which he was born and 
reared. This was not conducive to a satis- 
factory condition. The people of the state 
succeeded in emancipating themselves from 
this strange compound of laws by adopting 
a code system and also by adopting the best 
principles of the common law, that beautiful 



system which originated, it is said, in the 
forests of ancient Germany. 

The Roman classic system needs no com- 
mendation to the extent that it has been 
adopted in this state. As to the common law, 
the other part of our present system, some 
one has said it is based on Saxon customs 
molded by Norman lawyers ; it does not sug- 
gest a museum of remote antiquity, none the 
less we always seek to find a worthy past for 
all that is good. The two systems of law, civil 
and common, were blended. The results of 
the labors of the bench and bar of that pe- 
riod are still felt. Although a century has 
passed, during all these years these united 
systems of laws, civil and common, have 
com.e down to us with the impress placed 
upon them in the early years of the century. 

Sir Henry Maine, in one of his, interesting 
published lectures, says of our Code (and I 
quote him literally) that of all the republica- 
tions of the Roman law it is the one that ap- 
pears to him the fullest, the clearest, the 
most philosophical and the best adapted to 
the exigencies of modern society. The au- 
thor also asserts in his lecture on Roman 
law that, as adopted in Louisiana, it has 
produced "sensible effects on the older Amer- 
ican states." 

The late Mr. Carter, an eminent lawyer 
of the New York bar, having retired from 
active practice, devoted the evening of life 
to the study of the Philosophy and Origin 
of Law. In a book recently published, he 
comments favorably regarding Louisiana and 
her laws. 

The jurists of the early days of Louisiana 
well understood the effects of the laws upon 
society. The morality and progress that the 
laws foster ; the great power of justice in 
human affairs. Referring especially to those 
jurists of other days, we might say of them 
that in their trying difficulties they have 
succeeded as well as those of other^ climes 
and other countries in developing a reason- 
ably satisfactory system of laws. 

A hundred years of judicial history! Dur- 
ing that time many changes have taken place 
in the administration of the laws. None the 
less there still remains something of the re- 
mote past. The frequent saying that time 
does away with all things is not always true ; 
all is not reduced to dust ; much of the great 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxxi 



and useful remains. Among these are our 
system of laws and the records of our juris- 
prudence. Those of an early date still offer 
inviting fields to the student of law and to 
the older members of the profession as well. 

There is a complete list of the reports of 
decisions of each year from the first handed 
down in territorial days to date. They con- 
tain valuable records of communities, of 
families, of titles, and of other vast and va- 
ried interests of a state and of her people. 
The records of all these years are complete 
except two years (1863 and 1864, during 
which time there were no regular decisions 
rendered). There was a provisional court 
organized with undefined jurisdiction. Judge 
Peabody (by whose name the court is some- 
times known) wrote a pamphlet about his 
court — a copy of which I happen to have in 
my possession. Among other things he says 
that during the Civil War, to serve a pro- 
cess outside of the city, it required a squad- 
ron of cavalry and a section of artillery. 

The records of that court were deposited 
in Washington, D. C. The student of his- 
tory may some day find in them something to 
read. 

After this allusion to the judiciary — which 
I am purposely anxious not to make lengthy 
— I pass without transition (as they are a 
part of the courts) to the practicing attor- 
neys. They have an advantage over the 
members of the bench who are only of one 
bench; the functions of the judges extend 
no further, while the practicing attorneys 
are members of all the courts. The good 
lawyer is a good citizen. I hope no one will 
think that I am influenced by Vanity Fair 
when I say that he is a good man. The 
well-informed, intelligent, and independent 
lawyer deserves (and nearly always every- 
where receives) just and entitled recognition 
and consideration. 

There are prominent names in other fields 
of endeavor in this state; none more prom- 
inent than those of her lawyers. Not wishing 
to mention those of a recent date, it is a 
pleasure to name Edward Livingston, pro- 
nounced by Jeremy Bentham and others the 
first legal genius of modern times, Etienne 
Mazureau, John R. Grymes, J. P. Benjamin. 
There are many others well known to tradi- 
tion and to history. 
133 La.— f 



We have with us on this occasion distin- 
guished judges of the federal courts, to 
whom we extended a most hearty welcome. 
We have also extended the right hand of 
friendship to our Brothers of the different 
courts of the state present. Likewise we 
have had the great pleasure of welcoming 
Governor Hall and of listening to his inter- 
esting address. 

The name of Hall is suggestive. Judge 
Dominick Hall of the state Supreme Court in 
1813 (a short time thereafter judge of the 
federal court), had been arrested on order of 
General Jackson. Judge Martin in his his- 
tory of Louisiana states that Judge Joshua 
Lewis of the state court left his camp with 
a writ of habeas corpus to compel General 
Jackson to release Judge Hall. Judge Mar- 
tin adds : Judge Lewis was a member of the 
Orleans Rifles, one of the companies of Gen- 
eral Jackson serving at Chalmette, and was 
at the camp of his company when he issued 
the order. Thereupon General Jackson or- 
dered the arrest of Judge Lewis, but chang- 
ed his mind and recalled the order of arrest 
and immediately released Judge Hall. The 
sturdy General doubtless came to the con- 
clusion that two judges in the right were 
more than a match for him. 

The incident is mentioned in order to add 
that in those days the best of feeling must 
have existed between the state and the fed- 
eral authorities. 

The fraternal feeling began early in our 
history. May it continue always! Courts 
reasonably united, all seeking to properly ad- 
minister the laws, are among the powerful 
agencies in the cause of "faith, of country, 
and of home." 



Prayer. 

Offered hy the Rt. Rev. Davis Sessums, 
Bishop of Louisiana. 

Let the words of my mouth, and the med- 
itation of my heart, be always acceptable in 
Thy sight, O Lord, my Strength and my Re- 
deemer. 

O Lord God, the Supreme Governor of all 
the earth, look down, we pray Thee, upon all 
who bear rule among Thy people and upon 
those who are appointed to execute justice, 



Ixxxii 



133 LOUISIANA REPORTS 



and especially upon the Supreme Court of 
this commonwealth. Give them wisdom and 
grace, we beseech Thee, rightly and impar- 
tially to discharge their solemn duties, so 
that by their judgments and decrees law and 
order may be upheld, justice be administered, 
innocence relieved, the claims of mercy be 
duly regarded, righteousness be promoted, 
and the establishment of Thy Kingdom be 
advanced amongst men. 

Enlighten, we pray Thee, all who frame 
the laws of this land, and especially of this 
state, and increase and strengthen amongst 
the people the spirit of obedience as the 
safeguard of liberty. To those who judge 
and those who obey impart, we beseech Thee, 
single-minded devotion to the truth ; so that 
prosperity and moral and religious welfare 
may be joined together, and peace and hap- 
piness be multiplied amongst us; through 
Jesus Christ our Lord. Amen. 

The grace of our Lord, Jesus Christ, and 
the love of God, and the fellowship of the 
Holy Ghost, be with us all evermore. Amen. 

APPENDIX. 

The Celebration of the Centenary of 
the Supreme Court of Louisiana, 
Saturday, the First Day of March, 
Nineteen Hundred and Thirteen, 
New Orleans. 

THE COURT— 1818. 

Dominick Augustin HalL 
George Mathews. 
Pierre Derbigny. 

Attorney General: Francois-Xavier Martin. 

THE COURT— 1913. 

Chief Justice: Joseph A. Breaux. 

Associate Justices: Frank A. Monroe, Olivier 

O. Provosty, Alfred D. Land, 

Walter B. Sommerville. 

Clerk of Supreme Court of Louisiana: 
Paul, E. Mortimer. 

Attorney General: Ruffin G. Pleasant. 

CEREMONIES. 

Saturday, March First, Nineteen-Thirteen in 
the New Court House Building. 



En Banc. 

The Supreme Court of Louisiana and the 

Judges of the Federal Courts. 

Invocation, 
Very Rev. J. D. Foulkes, S. J. 

Minutes, 

(Monday, March 1, 1813) 

Paul E. Mortimer, Clerk. 

Opening Address, 
Joseph W. Carroll, Master of Ceremonies. 

Address of Welcome, 
Governor Luther E. Hall. 

The Centenary of the Supreme Court. 
"The History," Henry Plauchg Dart. 

"The Jurisprudence," Charles Payne Fenner. 
"The Bar," Thomas C. W. Ellis. 

Response hy the Chief Justice^ 
Joseph A. Breaux. 

Benediction, 
Right Rev. Davis Sessums, D. D. 

THE SUPERIOR COURT OF THE TER- 
RITORY OF ORLEANS. 

Ephraim Kirby Mar. 1804-Oct. 2, 1804 

John B. Prevost Mar. 1804-Nov. 14, 1808 

William Sprigg Jan. 17, 1806-Nov. 10,1806 

George Mathews Jan. 19, 1806-Mar. 1, 1813 

Joshua Lewis Nov. 10, 1806-Mar. 1. 1813 

John Thompson , Nov. 14, 1808-Mar. 21, 1810 

Francois-Xavier Martin Mar. 21, 1810-Mar. 1, 1S13 

THE SUPREME COURT OF THE STATE 
OF LOUISIANA. 

Dominick Augustin Hall Mar. 1, 1813-July 3, 1813 

George Mathews Mar. 1, 1813-Nov. 14, 1836 

Pierre Derbigny Mar. 9, 1813-Dec. 15, 1820 

Francois-Xavier Martin Feb. 1, 1815-Mar. 19, 1846 

Alexander Porter, Jr Jan. 2, 1821-Dec. 16, 1833 

Henry Adams Bullard Feb. 4, 1834-Feb. 1, 1839 

Henry Carleton April 1, 1837-Feb. 1, 1839 

Pierre Adolphe Rost Mar. 4, 1839- June 30, 1839 

George Eustis Mar. 4, 1839-May 30, 1839 

George Strawbridge Aug. 3, 1839-Dec. 1, 1839 

Alonzo Morphy Aug. 31, 1839-Mar. 19, 1846 

Edward Simon Jan. 1, 1840-Mar. 19, 1846 

Rice Garland Jan. 1, 1840-Mar. 19, 1846 

Henry Adams Bullard Jan. 1, 1840-Mar. 19. 1846 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxxiii 



George Eustis, C. J Mar. 19, 1846-May 4, 1S53 

Pierre Adolphe Rost Mar. 19, 1846-May 4, 1853 

George Rogers King Mar. 19, 1846-Mar. 1, 1850 

Thomas Slidell Mar. 19, 1846-May 4, 1853 

Isaac T. Preston Mar. 1, 1850-July 5, 1852 

William Dunbar Sept. 1, 1852-May 4, 1853 

Thomas Slidell, C. J May 4, 1853- June 18, 1855 

Cornelius Voorhies May 4, 1853-April 27, 1859 

Alexander M. Buchanan May 4, 1853-May 6, 1862 

Abner Nash Ogden * May 4, 1853-June 30, 1855 

James G. Campbell May 4, 1853-Oct. 17, 1S54 

Henry M. Spofford Nov. 6, 1854-Nov. 1, 1858 

James N. Lea July 23, 1855- April 6, 1857 

Edwin Thomas Merrick, 0. J..Aug. 1, 1855- April 1, 1865 

James L.Cole May 4, 1857-Mar. 12, 1860 

ThomasT. Land Nov. 1, 185S-April 1, 1865 

Albert Voorhies May 3, 1859- April 1, 1865 

Albert Duff el Mar. 12, 1860-April 1, 1865 

Peter E. Bonford 1863- 1864 

Thomas C. Manning 1864- 1865 

William B. Hyman, C. J April 1, 1865-Nov. 1, 1868 

ZenonLabauve April 1, 1865-Nov. 1, 1868 

JohnH. Ilsley April 1, 1865-Nov. 1, 1868 

Ruf us K. Howell April 1, lS65-Jan. 9, 1877 

Robert B. Jones April 1, 1865- July 1, 1866 

James G. Taliaferro July 1, 1866-Nov. 3, 1876 

John T. Ludeling, C. J Nov. 1, 186S-Jan. 9, 1877 

William G. Wyly Nov. 1, 1888-Nov. 3, 1876 

William Wirt Howe Nov. 1, 1868-Dec. 3, 1872 

John H. Kennard Dec. 3, 1872-Feb. 1, 1873 

Philip Hickey Morgan Feb. 1, 1873- Jan. 9, 1877 

John Edwards Leonard Nov. 3, 1876-Jan. 9, 1877 

John Edward King Jan. 9, lS77-Jan. 9, 1877 

Thomas C. Manning, C. J Jan. 9, 1877-April 5, 1880 

Robert Hardin Marr Jan. 9, 1877-April 5, 1880 

Alcibiades De Blanc Jan, 9, 1877-April 5, 1880 

William B. Egan Jan. 9, 1877-Nov. 30, 1878 

William B. Spencer Jan. 9, lS77-April 5, 1880 

Edward Douglass White Jan. 11, 1879-April 5, 1880 

Edward Bermudez, C. J April 5, 1880-April 5, 1892 

FelixP. Poche April 5, 1880-April 5, 1890 

Robert B. Todd April 5, 1880- June 11, 1888 

William M. Levy April 5, 1880-Nov. 5, 1882 

Charles E. Fenner April 5, 1880-Sept. 1, 1893 

Thomas C. Manning Dec. 1, 18S2- April 19,188^ 

Lynn B. Watkins April 19, 1886-Mar. 2, 1901 

Samuel Douglas McEnery.... June 11, 1888-Mar. 4,1897 

Joseph A. Breaux April 5, 1890- April 4, 1904 

Francis T. Nicholls, C. J April 5, 1892-April 4, 1904 

Charles Parlange Sept. 1, 1893- Jan. 1, 1S94 

Henry Carleton Miller Feb. 1, 1894-Mar. 4, 1899 

Newton Grain Blanchard Mar. 4, 1837-Oct. 17, 1903 

Francis T. Nicholls April 4, 1904-Mar. 18, 1911 

Joseph A. Breaux, C. J April 5, 1904-ApriI 5, 1914 

THE ATTORNEYS GENERAL. 

Francois-Xavier Martin 1812-15 

Etienne Mazureau 1815-17 

Louis Moreau-Lislet 1817-18 

Thomas Boiling Robertson 1819-20 

Etienne Mazureau 1S20-23 

Isaac T. Preston 1823-29 

Alonzo Morphy 1829-29 

George Eustis 1830-32 

Etienne Mazureau 1832-10 

Christian Roselius 1841-42 



Isaac T. Preston 1843-45 

William A. Elmore 1846-50 

Isaac Johnson 1851-52 

Isaac E. Morse 1853-55 

E. Warren Moise 1855-59 

Thomas J. Semmes 1860-62 

F. S. Goode 1862-64 

Andrew S. Herron 1865-65 

B. S. Lynch 1865-67 

Simeon Balden 1868-71 

A. P. Field 1872-76 

William H. Hunt 187&-76 

Hiram R. Steele 1876-76 

Horatio N. Ogden 1877-79 

James C. Egan 1880-84 

Milton J. Cunningham 1884-88 

Walter Henry Rogers 1888-92 

Milton J. Cunningham 1892-1900 

Walter Guion 1900-12 

Ruffln G. Pleasant 1912- 



THE REPORTERS. 

Francois-Xavier Martin 1809-31 

Branch W. Miller 1831-34 

Thomas Curry 1834-42 

Merritt W. Robinson 1842-52 

William W. King 1852-52 

William M. Randolph 1852-57 

Abner N. Ogden 1857-65 

S. F. Glenn 1865-67 

Jacob Hawkins 1S67-73 

Charles Gayarre 1S73-76 

Percy Roberts 1877-79 

Henry Denis 18S0-95 

Walter H. Rogers 1895-1902 

Thomas H. Thorpe 1902-07 

Charles G. Gill 1907- 

THE CLERKS. 

At Neio Orleans. 

R. F. Hamilton March 1, 1813 

Chas. Derbigny June 7, 1814 

N. N. Le Breton November 27, 1820 

A. Cuvillier December 11, 1837 

Charles Durocher July 1, 1843 

Eugene Lasere November 26, 1845 

J. Madison Wells, Jr April 3, 1S65 

John M. Howell January 9, 1872 

Alfred Roman January 9, 1877 

George W. Dupre April 5, ISSO 

Joseph F. Poche February 1, 1SS9 

Thomas McC. Hyman January 19, 1891 

Paul B. Mortimer June 30, 1909 

At Monroe. 

Henry M, Bry June 26, 1S46 

Robert Taylor March 27. 1850 

Franklin Garret July 9, 1866 

W. H. Dinkgrove July 12, 1869 

John H. Dinkgrove July 7, 1S73 

Talbot Stillman July 2, 1S77 

Robert J. Wilson June 7, ISSO 



Ixxxiv 



133 LOUISIANA REPORTS 



At Opelousas. 

Pierre Labiche June 26, 1846 

(The Court House and Records burned 1886) 

Benjamin R. Rogers 

L. S. Taylor 

B. F. Mequiley July 2, 1888 

At Alexandria. 

William "Wilson August 2, 1S13 

M. A. Airail June 26, 1846 

Duncan C. Goodwin ....September 17, 1850 

At Shreveport. 

S. M. Morrison October 11, 1880 

P. J, Trezevant October 13, 1884 

William G. Boney October 22, 1887 

William P. Ford September 20, 1890 

H. H. Hargrove October 9, 1893 

Note: The above lists were prepared as follows: 
Attorneys General and Reporters, by William Ker- 
nan Dart, of the New Orleans bar; Clerks, by John 
A. Klotz, deputy clerk of the Supreme Court. 

The Justices of the Supreme Court. 

By William Kernan Dart, of the New 
Orleans Bar. 

This list of the Justices of the Supreme 
Court is arranged chronologically in the or- 
der of appointment. In those cases where 
biographical data is accessible, such informa- 
tion is given. The list includes the name of 
every justice, including the members of the 
Superior Court of the Territory of Orleans. 
The brackets after the names indicate the 
term of service. The compiler has gathered 
this work from scattered directions, and in 
several cases has succeeded in obtaining only 
fragmentary information owing to the chaot- 
ic condition of sources. 

Ephraim Kirhy [1804-04] : Born Litchfield, 
Conn., February 23, 1757; died at Ft. Stod- 
dard, Miss., October 2, 1804. Kirby served 
through the Revolutionary War, and was left 
for dead on the field at Germantown. He 
was graduated from Yale. Served in Con- 
necticut Legislature, 1791-1804, and as Unit- 
ed States Supervisor of Revenues, 1801. He 
published the first volume of legal reports in 
the United States, those of Connecticut, in 
1789. He was several times a candidate for 
Governor of Connecticut Upon the acquisi- 
tion of Louisiana, Jefferson appointed him a 
judge of the Territorial Court of Orleans, 



and while en route to take his office he died 
at Ft. Stoddard, Miss. 

John B. Provost [March, 1804-November, 
1808]: Born in 1770 in the West Indies, the 
son of a British officer. His mother moved 
to New York, and in 1782 married Aaron 
Burr. In 1804 Prevost was a recorder in 
New York City. Jefferson commissioned him 
a judge of the new Territorial Court. Arriv- 
ing in New Orleans October 29, 1804, he open- 
ed the Superior Court with a charge to the 
grand jury on Monday, November 5, 1804. 
He tried the famous Garcia and Bollman 
Cases. After his retirement from the bench, 
he practiced law for many years in New Or- 
leans. In 1822 he was United States agent 
to investigate the rights of the rebels in the 
Spanish colonies. He died between 1830 and 
1840. 

William Sprigg [January 17, 1806-Novem- 
ber, 1808]: Was a member of Congress from 
Maryland, 1801-02. In the latter year he 
moved to Ohio, and in 1806 to Orleans. 

George Matthews, Jr. (or Mathews) [Janu- 
ary 19, 1806-November 14, 1836]: Born 
Staunton, Va., September 21, 1774; died 
Bayou Sara, La., November 14, 1836. His 
father was the Governor of Georgia who 
signed the famous Yazoo fund bill, and was 
a Revolutionary veteran. He (the judge) re- 
moved to Georgia in 1785, and was admitted 
to the bar in 1799. Appointed by Jefferson a 
judge of the Superior Court of Mississippi in 
1805, and in the following year was trans- 
ferred to Orleans. In 1813 he became pre- 
siding judge of the court, and remained such 
until his death. He learned the civil law 
after ascending the bench. He left a very 
large fortune at his death, and his will was 
successfully attacked; one of its dispositions 
being annulled by the Supreme Court. 

Joshua Leivis [November 10, 1806-March 
1, 1813]: Born Jessamine county, Va., June 
5, 1773, died at New Orleans, 1833. Emigrat- 
ed to Kentucky and was a political advisor 
of Henry Clay. Was one of the three com- 
missioners whom Jefferson appointed to take 
charge of Louisiana. Was a member of the 
Kentucky Legislature. After his retirement 
from the Superior Court bench, he became 
judge of the Fourth District Court, which 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxxv 



position he held from 1813 to his death. De- 
feated for Governor of Louisiana in 1816 by- 
Jacques Villerg. Was a lieutenant at the 
Battle of New Orleans, although he occupied 
a judicial position. Left a large family. 

John Thompson [November 14, 1808-Feb- 
ruary, 1810] : Died^ in New Orleans in 1810, 
and was succeeded by F.-X. Martin. 

FranQois-Xavier Martin [March 21, 1810- 
March 1, 1813; February 1, 1815-March 19, 
1846]: Born Marseilles, France, March 17, 
1764; died New Orleans, December 11, 1846. 
At 18 he emigrated to Martinique, and from 
there he went in 1786 to New Bern, N. C. 
Learned English by typesetting as a printer. 
Printed a number of books, and a daily paper 
in North Carolina. He was admitted to the 
bar in 1789. Issued a digest of North Caro- 
lina cases and laws, and translated Pothier 
on Obligations. Author of a History of 
North Carolina (1806-07), Martin's Louisiana 
Digest, Martin's History of Louisiana. Was 
a member of the North Carolina Legislature. 
Appointed in 1809 a judge of the Mississippi 
territory, and in 1810 was transferred to Or- 
leans. From February, 1813, to January, 
1815, was Attorney General of Louisiana, and 
was reappointed to the bench that year. 
Left a large estate; his will was unsuccess- 
fully attacked on the grounds of fraud. He 
was a brilliant and learned judge. His latter 
years on the bench were marred by total 
blindness, and certain disagreeable personal 
eccentricities. 

Dominick Augustin Hall [March 1, 1813- 
July 1, 1813]: Born in South Carolina, 1765; 
died in New Orleans, December 12, 1820. 
Practiced law in Charleston. U. S. District 
Judge, Orleans, 1803-12. Resigned to become 
state judge, and four months later reappoint- 
ed federal district judge. As such he fined 
General Andrew Jackson $1,000 for contempt 
of court during the Battle of New Orleans. 
This fine was repaid with interest by Con- 
gress in 1844. 

Pierre Auguste Charles Bourisgay Derhigny 
[March 1, 1813-December 15, 1820] : Born in 
Laon, Lille, Department du Nord, France, 
1767; died Gretna, La., October 6, 1829. He 
was descended from a French noble family 
which was compelled to migrate in 1793. He 



first went to St. Domingo, and thence to 
Pittsburg, Pa. At the latter place he mar- 
ried the sister of the French Governor, and 
then moved in succession to Missouri, Flori- 
da, and Louisiana. In 1803 he was private 
secretary to Etienne Bore, mayor of New Or- 
leans; in the same year Governor Claiborne 
appointed him oflBcial interpreter of languag- 
es for the territory. He delivered the first 
Fourth of July oration in the territory in 
1804. Clerk of court of common pleas, 1804; 
secretary of legislative counsel, same year. 
Member of first Louisiana House of Repre- 
sentatives, 1812, but resigned to become 
judge. His nomination was first rejected by 
the Senate, but was afterwards returned and 
confirmed at the Senate's request. He re- 
tired from the bench to run for Governor, 
and was defeated by T. B. Robertson. Sec- 
retary of State of Louisiana, 1820-27. Ap- 
pointed with Livingston and Moreau to revise 
the Civil Code in 1820. In 1828 he was elect- 
ed Governor, and was killed by being thrown 
from his carriage against a tree the follow- 
ing year. He was a prime factor in obtain- 
ing the admission of Louisiana. He also ran 
the first ferry across the Mississippi at New 
Orleans. 

Alexander Porter, Jr. [January 2, 1821-De- 
cember 16, 1833]: Born Armagh county, Ty- 
rone, Ireland, 1786; died Attakapas, La., Jan- 
uary 13, 1844. tlis father, a Presbyterian 
clergyman, was executed in Ireland as an 
English spy in 1798, and the orphan there- 
upon came to America with his uncle in 1801. 
He settled at Nashville, and on the advice of 
Andrew Jackson moved to Louisiana. Ad- 
mitted to the bar in 1807. Member of the 
Constitutional Convention of 1812, Elected 
to United States Senate, 1833, serving until 
1837. Voted as a senator to censure Jackson 
for removing deposits, and favored Texan 
independence. Again elected United States 
Senator in 1843, and died in office. 

Henry Adams Bullard [February 4, 1S34- 
February 1, 1839; January 1, lS40-March 19, 
1846]: Born Groton, Mass., September 9, 
1788; died New Orleans, April 17, 1S51. He 
was graduated from Harvard in 1S07. Shorr- 
ly thereafter he joined General Toledo to 
start a revolution in Mexico, and spent the 
winter of 1812 as his aide at Nashville. Id 



IxxxYi 



133 LOUISIANA REPORTS 



the spring of 1813, lie went to New Mexico, 
and was defeated by tlie royal troops in a 
pitclied battle at San Antonio. After severe 
bardsliips lie reached Natchitoches, and start- 
ed to practice law. In 1822 he was elected 
to the district bench, and to Congress in 
1833, from which he retired to become Jus- 
tice. Became Secretary of State of Louisi- 
ana in 1839, and the following year return- 
ed to the bench. In 1847 he became Profes- 
sor of Civil Law at the University of Loui- 
siana. Served a term in the Legislature, and 
a few weeks later was re-elected to Congress. 
After one year of Congress, he fell ill be- 
cause of the hardships of the return journey, 
and died. He was the first president of the 
Louisiana Historical Association. 

Henry Garleton [April 1, 1837-February 1, 
1839]: Born in Virginia about 1785; died at 
Philadelphia, March 28, 1863. His family 
name was originally Coxe. He was gradu- 
ated from Yale in 1806; he moved to Missis- 
sippi, and then to New Orleans in 1814. He 
served at the Battle of New Orleans as a 
lieutenant of infantry under Jackson. With 
Moreau-Lislet he published a translation of 
the Partidas. He was United States district 
attorney in 1832, and then became Justice. 
He resigned from the bench because of ill 
health, traveled about Europe, and on his 
return settled in Philadelphia, where he de- 
voted himself to biblical, metaphysical, afid 
philosophical studies. Published Liberty and 
Necessity (1857), and an Essay on Will (1863). 
Adhered to the Union during the war. 

Pierre Adolphe Rost [March 4, 1839- June 
30, 1839; March 19, 1846-May 4, 1853]: Born 
in Garonne, France, 1797; died at New Or- 
leans, September 6, 1868. Took part in the 
defense of Paris in 1814, and then became a 
member of Napoleon's army. Emigrated in 
1816 to America, landing at Natchez, Miss. 
Subsequently removed to Louisiana. State 
Legislature, 1822. Selected the name for La- 
fayette parish when it was created. Defeat- 
ed for Congress. Appointed to the supreme 
bench in 1839, and served a few months. 
Again appointed under the Constitution of 
1845. During the Civil War was a Confed- 
erate Commissioner to Spain. 

George Eustis [March 4, 1839-May 30, 1839; 
December 1, 1839; March 19, 1846-May 4, 



1853]: First Chief Justice. Born Boston, 
Mass., October 20, 1796; died New Orleans, 
December 22, 1858. Was graduated from 
Harvard, 1815. Served as private secretary 
to Governor William Eustis, who was then 
Minister to The Hague. Studied law there, 
and moved to New Orleans in 1817. Admit- 
ted to the bar in 1822. Served several terms 
in Legislature. Secretary of State, Commis- 
sioner of the Board of Currency, Attorney 
General of Louisiana, member of the Conven- 
tion of 184.5. Became, first Chief Justice of 
Louisiana under the Convention of 1845. 
Had previously been Associate Justice, and 
had declined a reappointment as such in De- 
cember, 1839. LL. D., Harvard. 

George Strawhridge [August 81, 1839-De- 
cember 1, 1839] : A native of Maryland. Aft- 
er he retired from the supreme bench, he be- 
came judge of the Fourth District Court, 
serving 1846-53. Ran for Associate Justice 
in 1853, but was defeated for election. 

Alonzo Morphy [August 31, 1839-March 19, 
1846]: Born Charleston, S. C. ; died New Or- 
leans, 1856. Moved to Louisiana, and 
studied law under Livingston. Member of 
Legislature, and Attorney General of the 
state. He was the father of Paul Morphy, 
chess player. 

Edivard Simon [January 1, 1840-March 19, 
1846]: Born May 26, 1799, Tournay, Hay- 
naut, Belgium. Studied at University of 
Louvain, and studied civil law at Brussels. 
Emigrated to London in 1817, and from there 
to Baltimore, where he went into the cotton 
business. Moved to Louisiana, settling at 
St. Martinsville. After retirement from 
bench, became a sugar planter. Died be- 
tween 1860 and 1870. 

Rice Garland [January 1, 1840-March 19, 
1846]: A native of Virginia. Member of 
Congress, 1834-1840. Died about 1861 in 
Texas. 

George Rogers King [March 19, 1846- 
March 1, 1850]: Born in St. Landry parish. 
La., 1807; died there March 21, 1871. Was 
graduated from University of Virginia. Serv- 
ed successively as state legislator, district at- 
torney, district judge, and Associate Justice. 

Thomas Slidell [March 19, 1846-May 4, 
1853; May 4, 1853- July, 1855]: Second Chief 



CENTENARY OF LOUISIANA SUPREME COURT 



Ixxxvii 



Justice. Born in New York, 1805, died there 
1860. Educated at Yale, and in Spain. Wrote 
A Year in Spain, and author of A Digest of 
the Supreme Court Decisions, with J. P. Ben- 
jamin. Was elected Chief Justice, his op- 
ponent being Christian Roselius, under the 
Constitution of 1852, and at the election was 
assaulted by a ruflBan. This assault affect- 
ed his brain, and caused his retirement from 
the bench. 

Iscbac Trwible Preston [March 1, 1850-July 
5, 1852]: Born Rockbridge county, Va., 1793; 
died on Lake Pontchartrain, La., July 5, 1852. 
Was graduated from Yale in 1812, and was 
captain of a volunteer company during the 
War of 1812. Studied law under William 
Wirt. Member of the Constitutional Conven- 
tion of 1845. Was killed by a steamboat 
disaster while returning from a pleasure trip. 

William Dunhar [September 1, 1852-May 4, 
1853] : Served in Congress from 1853 to 1855. 

Cornelius Voorhies [May 4, 1853-April, 
1859]: Of Dutch descent. Born Avoyelles 
parish, 1803. Died, 1859. District Attorney, 
State Senator, District Judge, and Supreme 
Court Justice. His son succeeded him on the 
bench. 

Alexander M. Buchanan [May 4, 1858- 
1862]: Judge of the Fourth District Court 
before his ascension to the bench. 

Ahner Nash Ogden [May 4, 1853-July, 
1855]: Declined a seat on the federal bench 
at one time. 

James Q. Gamp-bell [May 4, 1853-1855]. 

EeTvry Martyn Spofford [1854-November 1, 
1858]: Born Germanton, N. H., September 
8, 1821; died Red Sulphur Springs, W. Va., 
August 20, 1880. Was graduated from Am- 
herst in 1840 at the head of his class. Ad- 
mitted to bar at Monroe, La., 1846, and prac- 
ticed at Shreveport, La. District Judge, 
1852-54. Resigned from Supreme Court in 
1858. After the war was in partnership with 
John A. Campbell, Ex Justice of the United 
States Supreme Court. Elected to the United 
States Senate in 1877, but the Senate seated 
his opponent. LL. D., Amherst, 1877. Co- 
author of Louisiana Magistrate. 

James Neilson Lea [July, 1855-1858]: Born 
at Baton Rouge, La., November 26, 1815; died 



at Lexington, Va., October 29, 1884. Was 
graduated from Yale in 1834. Judge of Sec- 
ond District Court, 1849-55. After war be- 
came Professor of Civil Law at Washington 
and Lee College. 

Edtoin Thomas Merrick [July, 1855-April 
3, 1865] : Third Chief Justice. Born in Mas- 
sachusetts, 1810; died in New Orleans, 1897. 
Moved to Ohio, and then to Clinton, La., 
where he was a District Judge until elected 
Chief Justice. He was noted for his erudi- 
tion. 

James L. Cole [April 6, 1857-March 12, 
1860; 1863-65]: When the Federals attempt- 
ed to reorganize the Judiciary he was ap- 
pointed to his former position, but the court 
never as a fact organized. 

Thomas Thompson Land [November 1, 
1858-April 3, 1865]: Born Rutherford coun- 
ty, Va., December 17, 1815; died Shreveport, 
La., June 27, 1893. With his parents he 
moved first to Alabama, and then to Missis- 
sippi. Was graduated from the University 
of Virginia. A member of the Mississippi 
Legislature in 1839. Moved to Shreveport in 
1846. Judge of the District Court, 1854-58. 
Member of the Convention of 1879, where he 
was chairman of the judiciary committee. 
He was the father of Justice Alfred D. Land. 

Albert Yoorhies [April 1859-April 1865]: 
Born St. Francisville, La., 1829; died New 
Orleans, January, 1913. Son of Judge Cor- 
nelius Voorhies. After the war he became 
Lieutenant Governor of Louisiana, 1865-68, 
and subsequently served as a District Judge 
in New Orleans. 

Albert Duffel [March 12, 1860-April, 1862]. 

Pierre Emile Bonford [1863-August 17, 
1864]: Appointed by the Confederate State 
Government, and served until his death at 
Alexandria, La., Aug. 17, 1864. 

Thomas Courtland Manning [1864-65 ; Jan- 
uary 9, 1877-April 5, ISSO; December 1, 1882- 
April 19, 1886]: Sixth Chief Justice. Born 
at Edenton, N. C, 1831 ; died New York City, 
October 11, 1887. Was graduated from the 
University of North Carolina. Removed to 
Alexandria, La., 1855. Member of Secession 
Convention of 1861. Served in the war as 
a Lieutenant-Colonel and Brigadier-General 



Ixxxviii 



133 LOUISIANA REPORTS 



of the Confederacy, retiring to succeed Bon- 
ford as Justice in 1864. He declined Demo- 
cratic nominations for Governor in 1872, and 
for presidential elector. He was a vice-presi- 
dent of ttie Tilden nominating convention. 
In 1880, lie was Democratic presidential 
elector, and in the same year was appointed 
United States Senator, but was not admitted. 
He was named Chief Justice when the Demo- 
crats regained control of the state govern- 
ment. In 1882 he was appointed Associate 
Justice. From 1886 until he died he was 
United States Minister to Mexico. 

Charles A. Peahody [1863-65]: Provisional 
Judge of Louisiana during the war. He was 
commissioned Chief Justice of Louisiana by 
the Federal State Government, and drew a 
salary, but never heard a case. 

John 8. Whittaker [1863-65]: He was 
commissioned an Associate Justice by the 
Federal State Government, but never served. 
He was born in Massachusetts, March 8, 1817, 
and died about 1897. He served as Criminal 
District Judge of New Orleans during the 
latter part of the war period. 

William B. Hyman [April 3, 1865-Novem- 
ber 1, 1868]: Fourth Chief Justice. Born, 
Marion county, N. C, 1814; died in 1884. 
Moved to Alexandria, La., about 1840. Parish 
judge, Rapides, 1865-69. After his retire- 
ment from the Supreme Bench became parish 
judge of Jefferson, and later parish surveyor. 

Zenon Ladauve [April 3, 1865-November 1, 
1868] : Born in West Baton Rouge, February 
16, 1801; died in Iberville parish, 1870. State 
Senator, 1834-36, 1842-43. Member of Con- 
stitutional Convention of 1845. State Sen- 
ator, 1851. Justice, 1865-68. 

John Henry Ilsley [April 8, 1865-Novem- 
ber 1, 1868]: Born June 22, 1806, London, 
Eng.; died Donaldsonville, La., May 9, 1880. 
Was graduated from Oxford University, and 
emigrated to America when 19. Taught 
school until admitted to the bar. Several 
sons served in the Confederate Army. 

Rufiis K. Hoioell [April 3, 1865-January 9, 
1877]: President of the Constitutional Con- 
vention of 1864. 

Rotert Byron Jones [May 1, 1865-July 1, 
1866]. Born in Florida, in 1833. Died July 
20, 1867, at New Orleans. 



James G. Taliaferro [July 1, 1866-Novem- 
ber 3, 1876]: Born Amherst county, Va., 
1798; died Catahoul^ parish, 1876. Educat- 
ed Transylvania University, Ky. Member of 
Secession Convention, 1861, but voted against 
secession and remained a Union man. Of 
Italian descent. Moved to Louisiana in 1814. 
Parish judge, 1840. Member of the Constitu- 
tional Conventions of 1852 and 1868. 

John T. Ludeling [November 1, 1868- Janu- 
ary 9, 1877]. Fifth Chief Justice. Born in 
Monroe, La., 1822. Died January, 1890. 

William Gillespie Wyly [November 1, 1868- 
November 3, 1876]: Born Greenville, Tenn., 
February 1831; died on S. S. St. Louis en 
route from Liverpool to New York, Septem- 
ber 25, 1903. Was graduated from Jefferson 
College. In 1868 elected a District Judge, 
but resigned shortly thereafter to become Su- 
preme Court Justice. 

William Wiirt Howe [November 1, 1868-De- 
cember 3, 1872]: Born Canandaigua, N. Y., 
November 24, 1833; died at New Orleans, 
1911. Was graduated from Hamilton Col- 
lege. Major in United States army during 
the war. Served one year as president of 
the American Bar Association. Published 
Studies in Civil Law. Judge of Criminal 
District Court, 1868, which he resigned to be- 
come Associate Justice. United States Dis- 
trict Attorney, 1905-09. 

John H. Kennard [December 3, 1872-Feb- 
ruary 1, 1873]: Died at New Orleans, May 
2, 1887. Was appointed to the bench, and 
unseated after a brief service, being succeed- 
ed by Morgan. 

Philip Hickey Morgan [February 1, 1873- 
January 9, 1877]: Born Baton Rouge, La., 
November 9, 1825; died about 1892. District 
Judge, 1855-61. United States District At- 
torney, 1866-73. United States Representa- 
tive on International Tribunal at Egypt, 
1881-85. Subsequently United States Min- 
ister to Mexico. 

John Edtvards Leonard [November 3, 1876- 
January 9, 1877]: Born at Chester county, 
Pa., September 22, 1845; died at Havana, 
Cuba, March 15, 1878. Was graduated from 
Harvard and from Heidelberg. Moved to 
Louisiana, where he became District Attor- 



CENTENAKY OF LOUISIANA SUPREME COURT 



Ixxxix 



ney, and subsequently Justice. Elected to 
Congtess in 1876. 

John Edward King [January 9, 1877-Jan- 
uary 9, 1877]: Appointed by Governor Pack- 
ard to succeed Judge Wyly. He served one 
day only; the court being turned out of of- 
fice by the Democrats on that day. 

Rodert Hardin Marr [January 9, 1877- 
April 5, 1880]: Born Clarksville, Tenn., Oc- 
tober 29, 1819. Presidential Elector on Bell 
ticket in 1860. Judge of Criminal District 
Court. Died in New Orleans, November 18, 
1892. 

Alciliade De Blanc [January 9, 1877-April 
5, 1880]: Member Secession Convention of 
1861. Colonel of C. S. A. Died at St. Mar- 
tinsville, La., November 9, 1883. 

William B. G. Egan [January 9, 1877-No- 
vember 1878] : A native of Virginia. Died at 
New Orleans, November 1878. 

William B. Spencer [January 9, 1877-April 
5, 1880]: Born Catahoula parish, La., Febru- 
ary 5, 1835; died at Cordova, Mexico, April 
29, 1882. Member of Congress, May 31, 1876- 
January 8, 1877. 

Edward Douglass White [January 1879- 
April 5, 1880]: Born Lafourche parish. La., 
November 3, 1845. Was graduated from 
Georgetown (D. C). Served in Confederate 
Army. State Senator, 1874. United States 
Senator, 1891-94, Associate Justice United 
States Supreme Court, February 19, 1894- 
December 12, 1910. Since the latter date he 
has been Chief Justice of the United States. 

Edward Bermudez [April 5, 1880- April 5, 
1892]. Seventh Chief Justice. Born New Or- 
leans, January 19, 1832; died there August 
22, 1892. Member Secession Convention of 
1861. Served in Confederate Army. Assist- 
ant City Attorney, 1866. 

Felix Pierre Poch^ [April 5, 1880-April 5, 
1890]: Born St. James parish. May, 18, 1836; 
died at New Orleans, June 21, 1895. Served 
in Confederate Army. State Senator, 1866. 

Robert Burr Todd [April 5, 1880-June 11, 
1888]: Died at Brooklyn, N. Y., February 4, 
1901. 

William Mallory Levy [April 5, 1880-No- 
vember 5, 1882]: Born Isle of Wight coun- 



ty, Va., October 30, 1827; died Saratoga, N. 
Y., November 5, 1882. Served in Mexican 
War, and in Confederate Army. State Rep- 
resentative, 1859-61 ; Democratic Presidential 
Elector, 1860. Congressman, 1875-77. 

Charles Erasmus Fenner [April 5, 1880- 
September 1, 1893]: Born at Jackson, Tenn., 
February 14, 1834; died at New Orleans, Oc- 
tober 24, 1911. Served in Confederate Army. 
President of Tulane Educational Fund, and 
of Boston Club. Noted as orator. 

Lynn Boyd Watldns [April 19, 1886-March 
2, 1901]: Born Caldwell county, Ky., October 
9, 1836 ; died at New Orleans, March 2, 1901. 
Served in Confederate Army. District Judge, 
1871. 

Samuel Douglas McEnery [June 11, 1888- 
March 4, 1897]: Born Monroe, La., May 28, 
1837; died at New Orleans, June 28, 1910. 
Was graduated from the Naval Academy, and 
the University of Virginia. Served in Con- 
federate Army. Lieutenant Governor of Lou- 
isiana, 1879-81; Governor, 1881-88. Defeat- 
ed for Governor in 1892. Elected United 
States Senator in 1897, and served till he 
died. 

Joseph A. Breauoo [April 5, 1890-April 4, 
1904; April 4, 1904-April 3, 1914]: Mnth 
Chief Justice. Born February 18, 1838. Serv- 
ed in Confederate Army. Served as Associ- 
ate Justice from 1890 to 1904, when he be- 
came Chief Justice. Compiler of Breaux's 
Digest. 

Francis Tillou T^icholls [April 5, 1892-April 
4, 1904; April 4, 1904-March 18, 1911]: Born 
Donaldsonville, La., 1834; died there Janu- 
ary 4, 1912. Was graduated from West Point 
in 1855, served one year in regular army. 
Lost an eye, foot, and arm in Civil War, be- 
coming a Major General of Confederate 
Army. Governor of Louisiana, 1876-79, over- 
throwing Republican rule. Again Governor, 
1888-92. overthrowing lottery. Chief Justice, 
1892-1904, when he became Associate Justice. 
Retired on a pension in 1911, being the first 
judge in Louisiana to retire on a pension. 

Charles Parlangc [September 1, lS93-Jauu- 
ary 1, 1S94]: Born Pointe Coupee, La., 1852: 
died, New Orleans, February 5, 1907. Mem- 
ber Constitutional Convention of 1S79. State 



xc 



133 LOUISIANA REPORTS 



^ 



Senator, United States District Attorney, 
Lieutenant Governor. Retired from Supreme 
Court to become Federal District Judge, a 
position lie occupied until his death. 

Henry Carleton Miller [February 1, 1894- 
March 4, 1899]: Born Covington, La., Feb- 
ruary 1, 1828; died at New Orleans, March 
4, 1899. United States District Attorney, 
1856-61 ; C. S. A. District Attorney, 1861-65. 
Dean of Tulane Law School. 

'Newton Grain Blanchard [March 4, 1897- 
October 17, 1908] : Born Rapides parish, Jan- 
uary 29, 1849. Was graduated from Louisi- 
ana State University. Member Constitution- 
al Convention of 1879. Congressman, 1881- 
93; United States Senator, 1893-97. Gover- 
nor, 1904r-08. Now practicing law at Shreve- 
port. 

FranTc Adair Monroe [March 22, 1899- 

]: Born at Annapolis, Md., August 30, 

1844. Served in Confederate Army. Served 
a month as Judge of Third District Court in 
1872, when he was dispossessed. Served in 
White League. Re-elected Judge, 1876. 
Judge Civil District Court, 1880-99. Member 
Constitutional Convention of 1898. Will suc- 
ceed Judge Breaux as Chief Justice in April, 
1914. 

OUvier 0. Provosty [March 16, 1901- 

]: Born Pointe Coupee, La., August 

2, 1852. Educated at Georgetown University. 
District Attorney, 1873-76. Louisiana State 
Senate, 1888-92. Member of Constitutional 
Convention, 1898. Referee in bankruptcy, 
1898-190L 



Alfred Dillingham Land [October 17, 1903- 
y. Born Holmes county, Miss., Janu- 
ary 15, 1842. Son of Justice T. T. Land. 
Served in Confederate Army. District Judge, 
1894-1903. 

Walter Byers Sommerville [March 18, 1911- 
] : Born October 7, 1854, at New Orle- 
ans, La. Prior to his present elevation he 
was Assistant City Attorney, and Judge of 
the Civil District Court. 

Luther Eglert Hall [April 5, 1912-April 5, 
1912]: Was elected Justice, but, having been 
elected Governor of Louisiana, never took his 
seat. Judge Land was subsequently re-elect- 
ed to fill this vacancy. 

Charles A, O^Niell [April 4, 1914- ~ 1: 

Has been elected to the vacancy created by 
Justice Breaux' s retirement, and will take 
his seat on the above date. 



Invitation 



1S13 



1913 



The Centenary 

of the 

Supreme Court of Louisiana. 

The Chief Justice 

and the Associate Justices of the 

Supreme Court of Louisiana 

invite you to participate in the celebration of the 

One Hundredth Anniversary of the Organization of 

The Supreme Court of Louisiana 

to be held in the Court Room 

Saturday morning, March the first, 

nineteen hundred and thirteen, 

at eleven o'clock, 

New Orleans, Louisiana. 



'4... 



